SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities and Exchange Act of 1934
Date of Report: May 24, 1996
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(Date of earliest event reported)
NationsLink Funding Corporation
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(Exact name of registrant as specified in its charter)
Delaware 33-80625 56-1950039
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(State or Other (Commission (I.R.S. Employer
Jurisdiction of File Number) Identification No.)
Incorporation)
100 North Tryon Street, Charlotte, North Carolina 28255
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(Address of Principal Executive Office) (Zip Code)
Registrant's telephone number, including area code: (704) 386-5000
<PAGE>
Item 5. Other Events.
On May 16, 1996, NationsLink Funding Corporation (the "Company") caused the
issuance, pursuant to a Pooling and Servicing Agreement, dated as of May 1, 1996
(the "Pooling and Servicing Agreement"), by and among the Company, as depositor,
AMRESCO Management, Inc., as master servicer and as special servicer,
NationsBanc Mortgage Capital Corporation, as REMIC administrator, and The Chase
Manhattan Bank, N.A., as trustee, of NationsLink Funding Corporation Commercial
Mortgage Pass-Through Certificates, Series 1996-1, issued in fourteen classes.
The Class A-1, Class A-2, Class A-3, Class B, Class C, Class D and Class E
Certificates (the "Publicly Offered Certificates") were sold to NationsBanc
Capital Markets, Inc. ("NCMI") pursuant to an Underwriting Agreement, dated May
2, 1996, between the Company and NCMI. The Class IO, Class F, Class G, Class H
and Class UR Certificates (the "Privately Placed Certificates") are being sold
to unaffiliated investors by NCMI, as placement agent on behalf of the Company,
pursuant to a Private Placement Agency Agreement, dated May 15, 1996, between
the Company and NCMI. The Class R and Class LR Certificates were retained by the
Company. The Publicly Offered Certificates had an aggregate principal balance as
of May 1, 1996 of $287,149,271 and the Privately Placed Certificates had an
aggregate principal balance as of May 1, 1996 of $35,490,360.
Capitalized terms used and not defined herein have the meanings given to
them in the Pooling and Servicing Agreement.
Item 7. Financial Statements, Pro Forma Financial Information and Exhibits
(c) Exhibits
Exhibit No. Description
1 Pooling and Servicing Agreement, dated as of May 1, 1996.
2 Opinion of Cadwalader, Wickersham & Taft as to certain tax matters.
<PAGE>
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on behalf of the Registrant
by the undersigned thereunto duly authorized.
NATIONSLINK FUNDING CORPORATION
By: /s/James Sherrill
---------------------
James Sherrill
Vice President
Date: May 24, 1996
<PAGE>
Exhibit Index
Item 601(a) of Regulation
S-K Exhibit No.
Exhibit No. Description
1 4 Pooling and Servicing Agreement.
2 8 Opinion of Cadwalader,
Wickersham & Taft as to
certain tax matters.
EXHIBIT 1 TO FORM 8-K
================================================================================
NATIONSLINK FUNDING CORPORATION,
Depositor
AMRESCO MANAGEMENT, INC.,
Master Servicer
AMRESCO MANAGEMENT, INC.,
Special Servicer
NATIONSBANC MORTGAGE CAPITAL CORPORATION,
REMIC Administrator
and
THE CHASE MANHATTAN BANK, N.A.,
Trustee
POOLING AND SERVICING AGREEMENT
Dated as of May 1, 1996
$322,639,635
Commercial Mortgage Pass-Through Certificates
Series 1996-1
================================================================================
<PAGE>
TABLE OF CONTENTS
ARTICLE I
ARTICLE DEFINITIONS
SECTION 1.01. Defined Terms
SECTION 1.02. Certain Calculations
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS; ORIGINAL
ISSUANCE OF CERTIFICATES
SECTION 2.01. Conveyance of Mortgage Loans
SECTION 2.02. Acceptance by Trustee
SECTION 2.03. Representations, Warranties and Covenants of the
Depositor. Mortgage Loan Seller's Repurchase of
Mortgage Loans for Defects in Mortgage Files and
Breaches of Representations and Warranties
SECTION 2.04. Execution of Certificates
ARTICLE III
ADMINISTRATION AND SERVICING OF THE TRUST FUND
SECTION 3.01. Master Servicer to Act as Master Servicer; Special
Servicer to Act as Special Servicer; Administration
of the Mortgage Loans
SECTION 3.02. Collection of Mortgage Loan Payments
SECTION 3.03. Collection of Taxes, Assessments and Similar Items;
Servicing Accounts
SECTION 3.04. The Certificate Account and the Lower-Tier and
Upper-Tier Distribution Accounts
SECTION 3.05. Permitted Withdrawals From the Certificate Account
and the Distribution Accounts
SECTION 3.06. Investment of Funds in the Certificate Account,
the Distribution Accounts and the REO Account
SECTION 3.07. Maintenance of Insurance Policies; Errors and
Omissions and Fidelity Coverage
SECTION 3.08. Enforcement of Due-On-Sale Clauses; Assumption Agreements
SECTION 3.09. Realization Upon Defaulted Mortgage Loans
SECTION 3.10. Trustee to Cooperate; Release of Mortgage Files
SECTION 3.11. Servicing Compensation
SECTION 3.12. Inspections; Collection of Financial Statements
<PAGE>
SECTION 3.13. Annual Statement as to Compliance
SECTION 3.14. Reports by Independent Public Accountants
SECTION 3.15. Access to Certain Information
SECTION 3.16. Title to REO Property; REO Account
SECTION 3.17. Management of REO Property
SECTION 3.18. Sale of Defaulted Mortgage Loans and REO Properties
SECTION 3.19. Additional Obligations of the Master Servicer
SECTION 3.20. Modifications, Waivers, Amendments and Consents
SECTION 3.21. Transfer of Servicing Between Master Servicer and
Special Servicer; Record Keeping; Asset Strategy Report
SECTION 3.22. Sub-Servicing Agreements
SECTION 3.23. Representations and Warranties of the Master Servicer
SECTION 3.24. Representations and Warranties of the Special Servicer
SECTION 3.25. Duties of the Extension Adviser
SECTION 3.26. Extension Adviser; Elections
SECTION 3.27. Limitation on Liability Extension Adviser
ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS
SECTION 4.01. Distributions
SECTION 4.02. Statements to Certificateholders; Collection Reports
SECTION 4.03. P&I Advances
SECTION 4.04. Allocation of Collateral Support Deficit
SECTION 4.05. Appraisal Reductions
ARTICLE V
THE CERTIFICATES
SECTION 5.01. The Certificates
SECTION 5.02. Registration of Transfer and Exchange of Certificates
SECTION 5.03. Book-Entry Certificates
SECTION 5.04. Mutilated, Destroyed, Lost or Stolen Certificates
SECTION 5.05. Persons Deemed Owners
ARTICLE VI
THE DEPOSITOR, THE MASTER SERVICER, THE SPECIAL
SERVICER AND THE REMIC ADMINISTRATOR
SECTION 6.01. Liability of the Depositor, the Master Servicer,
the Special Servicer and the REMIC Administrator
<PAGE>
SECTION 6.02. Merger, Consolidation or Conversion of the
Depositor, the Master Servicer, the Special
Servicer or the REMIC Administrator
SECTION 6.03. Limitation on Liability of the Depositor, the Master
Servicer, the Special Servicer, the REMIC
Administrator and Others
SECTION 6.04. Depositor, Master Servicer, Special Servicer and
REMIC Administrator Not to Resign
SECTION 6.05. Rights of the Depositor in Respect of the Master
Servicer, the Special Servicer and
the REMIC Administrator
ARTICLE VII
DEFAULT
SECTION 7.01. Events of Default; Master Servicer and
Special Servicer Termination
SECTION 7.02. Trustee to Act; Appointment of Successor
SECTION 7.03. Notification to Certificateholders
SECTION 7.04. Waiver of Events of Default
SECTION 7.05. Trustee as Maker of Advances
SECTION 7.06. Advance Collateral Fund for Trustee
ARTICLE VIII
CONCERNING THE TRUSTEE
SECTION 8.01. Duties of Trustee
SECTION 8.02. Certain Matters Affecting the Trustee
SECTION 8.03. Trustee Not Liable for Validity or Sufficiency
of Certificates or Mortgage Loans
SECTION 8.04. Trustee May Own Certificates
SECTION 8.05. Fees and Expenses of Trustee; Indemnification
of Trustee
SECTION 8.06. Eligibility Requirements for Trustee
SECTION 8.07. Resignation and Removal of the Trustee
SECTION 8.08. Successor Trustee
SECTION 8.09. Merger or Consolidation of Trustee
SECTION 8.10. Appointment of Co-Trustee or Separate Trustee
SECTION 8.11. Appointment of Custodians
SECTION 8.12. Access to Certain Information
SECTION 8.13. Representations and Warranties of the Trustee
<PAGE>
ARTICLE IX
TERMINATION
SECTION 9.01. Termination Upon Repurchase or Liquidation of
All Mortgage Loans
SECTION 9.02. Additional Termination Requirements
ARTICLE X
ADDITIONAL REMIC PROVISIONS
SECTION 10.01. REMIC Administration
SECTION 10.02. Depositor, Master Servicer, Special Servicer
and Trustee to Cooperate with REMIC Administrator
SECTION 10.03. Fees and Expenses of the REMIC Administrator
SECTION 10.04. Use of Agents
SECTION 10.05. Representations and Warranties of the
REMIC Administrator
ARTICLE XI
MISCELLANEOUS PROVISIONS
SECTION 11.01. Amendment
SECTION 11.02. Recordation of Agreement; Counterparts
SECTION 11.03. Limitation on Rights of Certificateholders
SECTION 11.04. Governing Law
SECTION 11.05. Notices
SECTION 11.06. Severability of Provisions
SECTION 11.07. Grant of a Security Interest
SECTION 11.08. Successors and Assigns; Beneficiaries
SECTION 11.09. Article and Section Headings
SECTION 11.10. Notices to the Rating Agencies
<PAGE>
EXHIBITS
Exhibit A-1 Form of Class A-1 Certificate
Exhibit A-2 Form of Class A-2 Certificate
Exhibit A-3 Form of Class A-3 Certificate
Exhibit A-4 Form of Class B Certificate
Exhibit A-5 Form of Class C Certificate
Exhibit A-6 Form of Class D Certificate
Exhibit A-7 Form of Class E Certificate
Exhibit A-8 Form of Class F Certificate
Exhibit A-9 Form of Class G Certificate
Exhibit A-10 Form of Class H Certificate
Exhibit A-11 Form of Class UR Certificate
Exhibit A-12 Form of Class IO Certificate
Exhibit A-13 Form of Class R Certificate
Exhibit A-14 Form of Class LR Certificate
Exhibit B Mortgage Loan Schedule
Exhibit C Form of Investment Representation Letter
Exhibit D-1 Form of Transfer Affidavit
Exhibit D-2 Form of Transferor Letter
Exhibit E Form of UCC-1
Exhibit F Form of Request for Release
Exhibit G Form of ERISA Representation Letter
Exhibit H Form of Collection Report
SCHEDULES
Schedule 1 Computerized Database Information
<PAGE>
This Pooling and Servicing Agreement (the "Agreement"), is dated and
effective as of May 1, 1996, among NationsLink Funding Corporation as Depositor,
AMRESCO Management, Inc. as Master Servicer, AMRESCO Management, Inc. as Special
Servicer, NationsBanc Mortgage Capital Corporation as REMIC Administrator and
The Chase Manhattan Bank, N.A. as Trustee.
PRELIMINARY STATEMENT:
The Depositor intends to sell commercial mortgage pass-through
certificates (collectively, the "Certificates"), to be issued hereunder in
multiple classes (each, a "Class"), which in the aggregate will evidence the
entire beneficial ownership interest in the trust fund (the "Trust Fund") to be
created hereunder, the primary assets of which will be a pool of multifamily and
non-multifamily commercial mortgage loans (the "Mortgage Loans"). As provided
herein, the REMIC Administrator shall elect or shall cause an election to be
made that each of the Upper-Tier REMIC and the Lower-Tier REMIC be treated for
federal income tax purposes as a real estate mortgage investment conduit (a
"REMIC").
<PAGE>
The following table sets forth the designation, the pass-through rate
(the "Pass-Through Rate"), the aggregate initial principal amount (the "Original
Certificate Balance") or Notional Amount, as applicable, and the initial ratings
given each class by the Rating Agencies (the "Original Ratings") for each Class
of Certificates comprising the interests in the Upper-Tier REMIC created
hereunder:
UPPER-TIER REMIC
Original
Class Certificate Balance/ Original Rating
Designation Pass-Through Rate Original Notional Amount DCR/S&P
- ----------- ----------------- ------------------------ ---------------
Class A-1 7.533 % $ 70,980,719 AAA/AAA
Class A-2 7.515 % $ 96,791,890 AAA/AAA
Class A-3 7.830 % $ 51,622,341 AAA/AAA
Class B 7.690 % $ 16,131,981 AA+/AA
Class C 7.690 % $ 19,358,378 AA-/A
Class D 7.690 % $ 17,745,179 BBB+/BBB
Class E 7.690 % $ 14,518,783 BBB-/*[FN1]
Class F 7.350 % $ 10,485,788 BB/BB
Class G 7.350 % $ 5,646,193 BB-/*
Class H 7.350 % $ 9,679,189 B/*
Class IO 0.52627%[FN2] $ 322,607,371[FN3] AAA/*
Class UR 6.800 % $ 9,679,194 */*
Class R None None[FN4] */*
[FN1]The Certificates marked with an asterisk have not been rated by the
applicable Rating Agency.
[FN2]The Pass-Through Rate applicable to the Class IO Certificates for any
Distribution Date will be a rate per annum, rounded to five decimal places,
equal to the excess, if any, of (a) the weighted average of the applicable
Effective Net Mortgage Rates of the Mortgage Loans, weighted on the basis
of their respective Stated Principal Balances as of the preceding
Distribution Date (after giving effect to the distribution of principal on
such Distribution Date), or, in the case of the first Distribution Date,
the Cut-off Date, over (b) the weighted average of the Pass-Through Rates
on all of the other Certificates, weighted on the basis of their respective
Certificate Balances immediately prior to such Distribution Date. The Class
IO Pass-Through Rate with respect to the first Distribution Date is
expected to be approximately 0.52627% per annum.
[FN3]The Class IO Certificates will not have a Certificate Balance and will not
be entitled to receive distributions of principal. Interest will accrue on
each such Class of Certificates at the Pass-Through Rate thereof on the
Notional Amount thereof. The Notional Amount of the Class IO Certificates
for any Distribution Date will be equal to 99.99% of the aggregate Stated
Principal Balances of the Mortgage Loans as of the preceding Distribution
Date (after giving effect to the distribution of principal on such
Distribution Date) or, in the case of the first Distribution Date, the
Cut-off Date.
[FN4]The Class R Certificates do not have a Certificate Balance or Notional
Amount, do not bear interest and will not be entitled to distributions of
Prepayment Premiums or Yield Maintenance Charges. Any Available
Distribution Amount remaining in the Upper-Tier Distribution Account, after
all required distributions under this Agreement have been made to each
other Class of Certificates, will be distributed to the Holders of the
Class R Certificates.
<PAGE>
The initial Lower-Tier Principal Amounts and per annum rates of
interest for the Uncertificated Lower-Tier Interests are set forth in Section
4.01(b)(i).
The Class A-1, Class A-2, Class A-3, Class B, Class C, Class D, Class
E, Class F, Class G, Class H, Class IO and Class UR Certificates will evidence
"regular interests" in the Upper-Tier REMIC created hereunder. The sole class of
"residual interests" in the Upper-Tier REMIC created hereunder will be evidenced
by the Class R Certificates. The Class LA-1, Class LA-2, Class LA-3, Class LB,
Class LC, Class LD, Class LE, Class LF, Class LG, Class LH, Class LUR and Class
LWAC Uncertificated Interests will evidence "regular interests" in the
Lower-Tier REMIC created hereunder. The sole class of "residual interests" in
the Lower-Tier REMIC created hereunder will be evidenced by the Class LR
Certificates.
As of close of business on the Cut-off Date, the Mortgage Loans had an
aggregate principal balance, after application of all payments of principal due
on or before such date, whether or not received, equal to $322,639,635.
In consideration of the mutual agreements herein contained, the
Depositor, the Master Servicer, the Special Servicer, the REMIC Administrator
and the Trustee agree as follows:
<PAGE>
ARTICLE I
DEFINITIONS
SECTION 1.01. Defined Terms.
-------------
Whenever used in this Agreement, including in the Preliminary
Statement, the following words and phrases, unless the context otherwise
requires, shall have the meanings specified in this Article.
"Accrued Certificate Interest": With respect to each Distribution Date
and each Class of Certificates (other than the Residual Certificates), an amount
equal to interest for the related Interest Accrual Period at the Pass-Through
Rate applicable to such Class of Certificates for such Distribution Date,
accrued on the related Certificate Balance or Notional Amount, as applicable, of
such Class outstanding immediately prior to such Distribution Date commencing in
the month of the Closing Date. Accrued Certificate Interest shall be calculated
on the basis of a 360-day year consisting of twelve 30-day months.
"Acquisition Date": With respect to any REO Property, the first day on
which such REO Property is considered to be acquired by the Trust Fund and the
Lower-Tier REMIC within the meaning of Treasury Regulation Section
1.856-6(b)(1), which is the first day on which the Lower-Tier REMIC is treated
as the owner of such REO Property for federal income tax purposes.
"Adjusted Principal Balance": As defined in Section 4.01(f).
"Advance": Any P&I Advance or Servicing Advance.
"Advance Collateral Fund": The separate account established and
maintained pursuant to the Collateral Fund Custodial Agreement and Section 7.06
hereof, in the name of the Trustee for the benefit of the Certificateholders,
which account must be an Eligible Account.
"Adverse REMIC Event": As defined in Section 10.01(f).
"Affiliate": With respect to any specified Person, any other Person
controlling or controlled by or under common control with such specified Person.
For the purposes of this definition, "control" when used with respect to any
specified Person means the power to direct the management and policies of such
Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Agent": As defined in Section 5.02(d)(i)(A).
"Agreement": This Pooling and Servicing Agreement and all amendments
hereof and supplements hereto.
<PAGE>
"AMRESCO": AMRESCO Management, Inc., a Texas corporation.
"Appraisal": An appraisal prepared by an Independent MAI appraiser
with at least five years experience in properties of like kind and in the same
area, prepared in accordance with 12 C.F.R. 225.64.
"Appraisal Reduction": For any Distribution Date and for any Mortgage
Loan as to which an Appraisal Reduction Event has occurred, an amount equal to
the excess, if any, of (a) the Stated Principal Balance of such Mortgage Loan
over (b) the excess of (i) 90% of the Appraised Value of the related Mortgaged
Property over (ii) the sum of (A) to the extent not previously advanced by the
Master Servicer or the Trustee, all unpaid interest on such Mortgage Loan at a
per annum rate equal to its Mortgage Rate, (B) all unreimbursed Advances and
interest thereon at the Reimbursement Rate in respect of such Mortgage Loan and
(C) all currently due and unpaid real estate taxes and assessments and insurance
premiums and all other amounts due and unpaid with respect to such Mortgage Loan
(which taxes, premiums and other amounts have not been subject to an Advance by
the Master Servicer or the Trustee, as applicable). Within 30 days after the
Appraisal Reduction Event, the Special Servicer shall obtain an Appraisal (the
costs of which shall be paid as a Servicing Advance by the Master Servicer),
which Appraisal shall be delivered by the Special Servicer to the Master
Servicer, and the Master Servicer shall deliver such Appraisal to the Trustee
and each Holder of a Class F, Class G, Class H and Class UR Certificate within
15 days of receipt by the Master Servicer of such Appraisal from the Special
Servicer.
"Appraisal Reduction Amount": With respect to each of the Class UR,
Class H, Class G, Class F, Class E, Class D, Class C and Class B Certificates
for any Distribution Date, an amount equal to the amount of interest that
accrued for the related Interest Accrual Period at the Pass-Through Rate for
such Class of Certificates, on the portion, if any, of the related Certificate
Balance equal to the Appraisal Reduction allocated to such Class for such
Distribution Date pursuant to Section 4.05(a); and with respect to each Class of
Uncertificated Lower-Tier Interest, the amount allocated pursuant to Section
4.05(b).
"Appraisal Reduction Event": With respect to any Mortgage Loan, the
earliest of (i) the third anniversary of the date on which the first extension
of the Maturity Date of such Mortgage Loan becomes effective as a result of a
modification of such Mortgage Loan by the Special Servicer pursuant to the terms
hereof, which extension does not change the amount of Monthly Payments on the
Mortgage Loan, (ii) 60 days after an uncured delinquency (without regard to the
application of any grace period) occurs in respect of such Mortgage Loan, (iii)
90 days after the date on which a reduction in the amount of Monthly Payments on
such Mortgage Loan, or a change in any other material economic term of such
Mortgage Loan (other than an extension of the Maturity Date), becomes effective
as a result of a modification of such Mortgage Loan by the Special Servicer,
(iv) immediately after a receiver has been appointed, (v) immediately after a
Mortgagor declares bankruptcy and (vi) immediately after a Mortgage Loan becomes
an REO Loan, provided, however, that an Appraisal Reduction Event shall not
occur at any time that the aggregate Certificate Balances of the Class A
Certificates have not been reduced to zero and the aggregate Certificate Balance
of the Class B Certificates has been reduced to zero. The Special Servicer shall
notify the Master Servicer promptly upon the occurrence of any of the foregoing
events.
<PAGE>
"Appraised Value": With respect to any Mortgaged Property, the
appraised value thereof as determined by an Appraisal of the Mortgaged Property
securing such Mortgage Loan made by an Independent MAI appraiser selected by the
Master Servicer.
"Asset Strategy Report": As defined in Section 3.21(e).
"Assignment of Leases": With respect to any Mortgaged Property, any
assignment of leases, rents and profits or similar instrument executed by the
Mortgagor, assigning to the mortgagee all of the income, rents and profits
derived from the ownership, operation, leasing or disposition of all or a
portion of such Mortgaged Property, in the form which was duly executed,
acknowledged and delivered, as amended, modified, renewed or extended through
the date hereof and from time to time hereafter.
"Assumed Scheduled Payment": For any Due Period and with respect to
any Mortgage Loan that is delinquent in respect of its Balloon Payment
(including any REO Loan as to which the Balloon Payment would have been past
due), an amount equal to the sum of (a) the principal portion of the Monthly
Payment that would have been due on such Mortgage Loan on the related Due Date
based on the constant payment required by the related Mortgage Note or the
original amortization schedule thereof (as calculated with interest at the
related Mortgage Rate), if applicable, assuming such Balloon Payment has not
become due, after giving effect to any modification, and (b) interest on the
Stated Principal Balance of such Mortgage Loan at the applicable Net Mortgage
Rate.
"Available Distribution Amount": With respect to any Distribution
Date, an amount equal to the sum of (without duplication):
(a) the aggregate amount relating to the Trust Fund on deposit in the
Certificate Account and the Lower-Tier Distribution Account as of
the close of business on the Business Day preceding the related
P&I Advance Date, exclusive of:
(i) all Monthly Payments paid by the Mortgagors that are due
on a Due Date following the end of the related Due Period;
(ii) all Principal Prepayments (together with any related
payments of interest allocable to the period following the
Due Date for the related Mortgage Loan during the related
Due Period), Liquidation Proceeds or Insurance Proceeds
received after the end of the related Due Period;
(iii) all amounts payable or reimbursable to any Person from the
Certificate Account pursuant to clauses (ii) - (xviii),
inclusive, of Section 3.05(a);
<PAGE>
(iv) all amounts payable or reimbursable to any Person from the
Lower-Tier Distribution Account pursuant to clauses (ii) -
(v), inclusive, of Section 3.05(b);
(v) all Prepayment Premiums and Yield Maintenance Charges;
(vi) all amounts received with respect to any Mortgage Loan
during the related Due Period that represent recoveries
from Liquidation Proceeds or other final payment with
respect to such Mortgage Loan in an amount equal to the
sum, without duplication, of all Appraisal Reduction
Amounts allocated to any Class or Classes of Certificates
with respect to such Mortgage Loan; and
(vii) all amounts deposited in the Certificate Account or the
Lower-Tier Distribution Account, as the case may be, in
error;
(b) if and to the extent not already included in clause (a) hereof, the
aggregate amount transferred from the REO Account to the Certificate
Account for such Distribution Date pursuant to Section 3.16(c); and
(c) the aggregate amount of any P&I Advances made by the Master Servicer
or the Trustee, as applicable, for such Distribution Date pursuant to
Section 4.03 or 7.05.
Notwithstanding the investment of funds held in the Certificate
Account or the Lower-Tier Distribution Account pursuant to Section 3.06, for
purposes of calculating the Available Distribution Amount, the amounts so
invested shall be deemed to remain on deposit in such account.
"Balloon Mortgage Loan": Any Mortgage Loan that by its original terms
or by virtue of any modification entered into as of the Closing Date provides
for an amortization schedule extending beyond its Maturity Date.
"Balloon Payment": With respect to any Balloon Mortgage Loan as of any
date of determination, the Monthly Payment payable on the Maturity Date of such
Mortgage Loan.
"Bankruptcy Code": The federal Bankruptcy Code, as amended from time
to time (Title 11 of the ---------------- United States Code).
"Book-Entry Certificate": Any Certificate registered in the name of
the Depository or its ----------------------- nominee.
"Breach": As defined in Section 2.03(b).
<PAGE>
"Business Day": Any day other than a Saturday, a Sunday or a day on
which banking institutions in New York, New York, or the city and state in which
the Corporate Trust Office of the Trustee or principal place of business of the
Master Servicer and Special Servicer is located, are authorized or obligated by
law or executive order to remain closed.
"CERCLA": The Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended.
"Certificate": Any one of the Depositor's Commercial Mortgage
Pass-Through Certificates, Series 1996-1, as executed by the Trustee and
authenticated and delivered hereunder by the Certificate Registrar.
"Certificate Account": The custodial account or accounts created and
maintained pursuant to Section 3.04(a) in the name of the Trustee on behalf of
the Certificateholders, into which the amounts set forth in Section 3.04(a)
shall be deposited directly. Any such account or accounts shall be an Eligible
Account.
"Certificate Balance": With respect to any Class of Certificates
(other than the Residual Certificates and the Class IO Certificates), (i) on or
prior to the first Distribution Date, an amount equal to the Original
Certificate Balance of such Class as specified in the Preliminary Statement
hereto, and (ii) as of any date of determination after the first Distribution
Date, the Certificate Balance of such Class on the Distribution Date immediately
prior to such date of determination (determined as adjusted pursuant to Section
1.02(iii)).
"Certificate Factor": With respect to any Class of 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 Certificate Balance, and the
denominator of which is the related Original Certificate Balance.
"Certificateholder" or "Holder": The Person in whose name a
Certificate is registered in the Certificate Register, provided, however, that
solely for the purposes of giving any consent, approval or waiver pursuant to
this Agreement, any Certificate registered in the name of the Master Servicer,
the Special Servicer, the Depositor or any Affiliate of either shall be deemed
not to be outstanding, and the Voting Rights to which it is entitled shall not
be taken into account in determining whether the requisite percentage of Voting
Rights necessary to effect any such consent, approval or waiver has been
obtained, if such consent, approval or waiver sought from such party would in
any way affect its obligations as Master Servicer, Special Servicer or
Depositor, as applicable, hereunder. The Trustee shall be entitled to request
and rely upon a certificate of the Master Servicer, the Special Servicer or the
Depositor in determining whether a Certificate is registered in the name of an
Affiliate of such Person. All references herein to "Holders" or
"Certificateholders" shall reflect the rights of Certificate Owners as they may
indirectly exercise such rights through the Depository and the Depository
Participants, except as otherwise specified herein; provided, however, that the
parties hereto shall be required to recognize as a "Holder" or
"Certificateholder" only the Person in whose name a Certificate is registered in
the Certificate Register.
<PAGE>
"Certificate Owner": With respect to a Book-Entry Certificate, the
Person who is the beneficial owner of such Certificate as reflected on the books
of the Depository or on the books of a Depository Participant or on the books of
an indirect participating brokerage firm for which a Depository Participant acts
as agent.
"Certificate Rating": With respect to the long-term unsecured debt of
any institution, a long-term debt obligation rating by each Rating Agency not
lower than the highest rating by such Rating Agency of any Class of Certificates
then outstanding; provided, however, that the Certificate Rating will not be
lower than Investment Grade by such Rating Agency.
"Certificate Register" and "Certificate Registrar": The register
maintained and registrar appointed pursuant to Section 5.02.
"Class": With respect to any Certificates or Uncertificated Lower-Tier
Interests, all of the Certificates or Uncertificated Lower-Tier Interests
bearing the same alphabetical (and, if applicable, numerical) class designation.
"Class A Certificate": Any Class A-1, Class A-2 or Class A-3
Certificate.
"Class A-1 Certificate": A Certificate designated as "Class A-1" on
the face hereof, in the form of Exhibit A-1 hereto.
"Class A-1 Pass-Through Rate": With respect to any Distribution Date,
a fixed rate per annum equal to 7.533%.
"Class A-2 Certificate": A Certificate designated as "Class A-2" on
the face thereof, in the form of Exhibit A-2 hereto.
"Class A-2 Pass-Through Rate": With respect to any Distribution Date,
a fixed rate per annum equal to 7.515%.
"Class A-3 Certificate": A Certificate designated as "Class A-3" on
the face thereof, in the form of Exhibit A-3 hereto.
"Class A-3 Pass-Through Rate": With respect to any Distribution Date,
a fixed rate per annum equal to 7.830%.
"Class B Certificate": A Certificate designated as "Class B" on the
face thereof, in the form of Exhibit A-4 hereto.
"Class B Pass-Through Rate": With respect to any Distribution Date, a
fixed rate per annum equal to 7.690%.
"Class C Certificate": A Certificate designated as "Class C" on the
face thereof, in the form of Exhibit A-5 hereto.
"Class C Pass-Through Rate": With respect to any Distribution Date, a
fixed rate per annum equal to 7.690%.
<PAGE>
"Class D Certificate": A Certificate designated as "Class D" on the
face thereof, in the form of Exhibit A-6 hereto.
"Class D Pass-Through Rate": With respect to any Distribution Date, a
fixed rate per annum equal to 7.690%.
"Class E Certificate": A Certificate designated as "Class E" on the
face thereof, in the form of Exhibit A-7 hereto.
"Class E Pass-Through Rate": With respect to any Distribution Date, a
fixed rate per annum equal to 7.690%.
"Class F Certificate": A Certificate designated as "Class F" on the
face thereof, in the form of Exhibit A-8 hereto.
"Class F Pass-Through Rate": With respect to any Distribution Date, a
fixed rate per annum equal to 7.350%.
"Class G Certificate": A Certificate designated as "Class G" on the
face thereof, in the form of Exhibit A-9 hereto.
"Class G Pass-Through Rate": With respect to any Distribution Date, a
fixed rate per annum equal to 7.350%.
"Class H Certificate": A Certificate designated as "Class H" on the
face thereof, in the form of Exhibit A-10 hereto.
"Class H Pass-Through Rate": With respect to any Distribution Date, a
fixed rate per annum equal to 7.350%.
"Class IO Certificate": A Certificate designated as "Class IO" on the
face thereof, in the form of Exhibit A-12 hereto.
"Class IO Pass-Through Rate": With respect to any Distribution Date, a
rate per annum, rounded to five decimal places, equal to the excess, if any, of
(a) the weighted average of the applicable Effective Net Mortgage Rates of the
Mortgage Loans, weighted on the basis of their respective Stated Principal
Balances as of the preceding Distribution Date (after giving effect to the
distribution of principal on such Distribution Date), or, in the case of the
first Distribution Date, the Cut-off Date, over (b) the weighted average of the
Pass-Through Rates on all of the other Certificates, weighted on the basis of
their respective Certificate Balances immediately prior to such Distribution
Date. The Class IO Pass-Through Rate with respect to the first Distribution Date
is expected to be approximately 0.52627% per annum. Interest at the Class IO
Pass-Through Rate represents a "specified portion" (within the meaning of
Treasury Regulations Section 1.860G-1(a)(2)(i)(C)) of the interest payments on
the Class LWAC Uncertificated Interest.
<PAGE>
"Class LA-1 Uncertificated Interest": A regular interest in the
Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC and having
the initial Lower-Tier Principal Amount and per annum rate of interest set forth
in Section 4.01(b)(i).
"Class LA-2 Uncertificated Interest": A regular interest in the
Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC and having
the initial Lower-Tier Principal Amount and per annum rate of interest set forth
in Section 4.01(b)(i).
"Class LA-3 Uncertificated Interest": A regular interest in the
Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC and having
the initial Lower-Tier Principal Amount and per annum rate of interest set forth
in Section 4.01(b)(i).
"Class LB Uncertificated Interest": A regular interest in the
Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC and having
the initial Lower-Tier Principal Amount and per annum rate of interest set forth
in Section 4.01(b)(i).
"Class LC Uncertificated Interest": A regular interest in the
Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC and having
the initial Lower-Tier Principal Amount and per annum rate of interest set forth
in Section 4.01(b)(i).
"Class LD Uncertificated Interest": A regular interest in the
Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC and having
the initial Lower-Tier Principal Amount and per annum rate of interest set forth
in Section 4.01(b)(i).
"Class LE Uncertificated Interest": A regular interest in the
Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC and having
the initial Lower-Tier Principal Amount and per annum rate of interest set forth
in Section 4.01(b)(i).
"Class LF Uncertificated Interest": A regular interest in the
Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC and having
the initial Lower-Tier Principal Amount and per annum rate of interest set forth
in Section 4.01(b)(i).
"Class LG Uncertificated Interest": A regular interest in the
Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC and having
the initial Lower-Tier Principal Amount and per annum rate of interest set forth
in Section 4.01(b)(i).
"Class LH Uncertificated Interest": A regular interest in the
Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC and having
the initial Lower-Tier Principal Amount and per annum rate of interest set forth
in Section 4.01(b)(i).
"Class LR Certificate": A Certificate designated as "Class LR" on the
face thereof, in the form of Exhibit A-14 hereto.
"Class LUR Uncertificated Interest": A regular interest in the
Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC and having
the initial Lower-Tier Principal Amount and per annum rate of interest set forth
in Section 4.01(b)(i).
<PAGE>
"Class LWAC Uncertificated Interest": A regular interest in the
Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC and having
the initial Notional Amount and per annum rate of interest set forth in Section
4.01(b)(i).
"Class R Certificate": A Certificate designated as "Class R" on the
face thereof, in the form of Exhibit A-13 hereto.
"Class Unpaid Interest Shortfall": As to any Distribution Date and any
Class of REMIC Regular Certificates, the excess, if any, of (a) the sum of (i)
the Distributable Certificate Interest in respect of such Class for the
immediately preceding Distribution Date and (ii) any outstanding Class Unpaid
Interest Shortfall payable to such Class on such preceding Distribution Date
over (b) the aggregate amount in respect of interest actually distributed to
such Class on such immediately preceding Distribution Date. The Class Unpaid
Interest Shortfall with respect to any Class of Certificates as of the initial
Distribution Date is zero. No interest shall accrue on Class Unpaid Interest
Shortfalls.
"Class UR Certificate": A Certificate designated as "Class UR" on the
face thereof, in the form of Exhibit A-11 hereto.
"Class UR Pass-Through Rate": With respect to any Distribution Date, a
fixed rate per annum equal to 6.800%.
"Closing Date": May 16, 1996.
"Code": The Internal Revenue Code of 1986, as amended from time to
time.
"Collateral Fund Custodial Agreement": The Agreement dated as of May
1, 1996, by and among the Trustee, The Chase Manhattan Bank, N.A., in its
individual capacity and not as Trustee, and Marine Midland Bank, as Collateral
Fund Custodian, pursuant to which the Advance Collateral Fund will be
established and maintained.
"Collateral Fund Custodian": Marine Midland Bank, a banking
corporation and trust company organized under the laws of the State of New York,
or its successor in interest.
"Collateral Support Deficit": As defined in Section 4.04.
"Collection Report": The monthly report to be prepared by the Master
Servicer and delivered to the Trustee, the Depositor and each Rating Agency
pursuant to Section 4.02(b) substantially in the form of Exhibit H attached
hereto.
"Commission": The Securities and Exchange Commission.
<PAGE>
"Controlling Class": As of any date of determination, the most
subordinate Class of REMIC Regular Certificates then outstanding that has a then
aggregate Certificate Balance at least equal to the lesser of (a) 1% of the
outstanding aggregate principal balance of the Mortgage Loans as of the Closing
Date or (b) 25% of the initial Certificate Balance of such Class of
Certificates. For purposes of determining the identity of the Controlling Class,
the Certificate Balance of each Class shall be deemed to be reduced by the
amount allocated to such Class of any Appraisal Reductions relating to Mortgage
Loans as to which Liquidation Proceeds or other final payment has not yet been
received. As of the Closing Date, the Controlling Class will be the Class UR
Certificates.
"Controlling Class Certificateholders": Each Holder (or Certificate
Owner, if applicable) of a Certificate of the Controlling Class as certified to
the Trustee from time to time by such Holder (or Certificate Owner).
"Corporate Trust Office": The principal corporate trust office of the
Trustee at which at any particular time its corporate trust business with
respect to this Agreement shall be administered, which office at the date of the
execution of this Agreement is located at 4 Chase MetroTech Center, Third Floor,
Brooklyn, New York 11245.
"Credit File": Any documents, other than documents required to be part
of the related Mortgage File, in the possession of the Master Servicer and
relating to the origination and servicing of any Mortgage Loan.
"Custodian": A Person who is at any time appointed by the Trustee
pursuant to Section 8.11 as a document custodian for the Mortgage Files, which
Person shall not be the Depositor, the Mortgage Loan Seller or an Affiliate of
either of them.
"Cut-off Date": May 1, 1996.
"Cut-off Date Principal Balance": With respect to any Mortgage Loan,
the outstanding principal balance of such Mortgage Loan as of the Cut-off Date,
after application of all payments of principal due on or before such date,
whether or not received.
"DCR": Duff & Phelps Credit Rating Co., or its successor in interest.
"Debt Service Coverage Ratio": With respect to any Mortgage Loan for
any twelve month period covered by an annual operating statement for the related
Mortgaged Property, the ratio of (i) Net Operating Income produced by the
related Mortgaged Property during such period to (ii) the aggregate amount of
Monthly Payments (other than any Balloon Payment) due under such Mortgage Loan
during such period.
"Debt Service Reduction": With respect to any Mortgage Loan, a
reduction in the scheduled Monthly Payment for such Mortgage Loan by a court of
competent jurisdiction in a proceeding under the Bankruptcy Code, other than a
reduction resulting from a Deficient Valuation.
<PAGE>
"Default Interest": With respect to any defaulted Mortgage Loan for
any related Due Period, all interest accrued in respect of such Mortgage Loan
during such Due Period provided for in the related Mortgage Note or Mortgage as
a result of the related default (exclusive of late payment charges) that is in
excess of interest at the related Mortgage Rate accrued on the unpaid principal
balance of such Mortgage Loan (or successor REO Loan) outstanding from time to
time during such Due Period.
"Defaulted Mortgage Loan": A Mortgage Loan that is delinquent at least
sixty days in respect of its Monthly Payments or is delinquent thirty days or
more in respect of its Balloon Payment, if any, in either case such delinquency
to be determined without giving effect to any grace period permitted by the
related Mortgage or Mortgage Note and without regard to any acceleration of
payments under the related Mortgage and Mortgage Note.
"Defaulting Party": As defined in Section 7.01(b).
"Defect": As defined in Section 2.02(e).
"Deficient Valuation": With respect to any Mortgage Loan, a valuation
by a court of competent jurisdiction of the Mortgaged Property in an amount less
than the then outstanding principal balance of the Mortgage Loan, which
valuation results from a proceeding initiated under the Bankruptcy Code.
"Definitive Certificate": As defined in Section 5.01(a).
"Denomination": As defined in Section 5.01(a).
"Depositor": NationsLink Funding Corporation, a Delaware corporation,
or its successor in interest.
"Depository": The Depository Trust Company, or any successor
Depository hereafter named. The nominee of the initial Depository for purposes
of registering those Certificates that are to be Book-Entry Certificates, is
Cede & Co. The Depository shall at all times be a "clearing corporation" as
defined in Section 8-102(3) of the Uniform Commercial Code of the State of New
York and a "clearing agency" registered pursuant to the provisions of Section
17A of the Securities Exchange Act of 1934, as amended.
"Depository Participant": A broker, dealer, bank or other financial
institution or other Person for whom from time to time the Depository effects
book-entry transfers and pledges of securities deposited with the Depository.
"Depository Rules": As defined in Section 5.02(b).
"Determination Date": With respect to any Distribution Date, the 15th
day of the month in which such Distribution Date occurs, or if such 15th day is
not a Business Day, the next succeeding Business Day.
<PAGE>
"Directing Certificateholder": The Controlling Class Certificateholder
selected by more than 50% of the Controlling Class Certificateholders, by
Certificate Balance, as certified by the Trustee from time to time; provided,
however, that (i) absent such selection, or (ii) until a Directing
Certificateholder is so selected, or (iii) upon receipt of a notice from a
majority of the Controlling Class Certificateholders, by Certificate Balance,
that a Directing Certificateholder is no longer designated, the Controlling
Class Certificateholder that owns the largest aggregate Certificate Balance of
the Controlling Class will be the Directing Certificateholder.
"Directly Operate": With respect to any REO Property, the furnishing
or rendering of services to the tenants thereof, the management or operation of
such REO Property, the holding of such REO Property primarily for sale to
customers, the performance of any construction work thereon or any use of such
REO Property in a trade or business conducted by the Trust Fund other than
through an Independent Contractor; provided, however, that the Trustee (or the
Special Servicer on behalf of the Trustee) shall not be considered to Directly
Operate an REO Property solely because the Trustee (or the Special Servicer on
behalf of the Trustee) establishes rental terms, chooses tenants, enters into or
renews leases, deals with taxes and insurance, or makes decisions as to repairs
or capital expenditures with respect to such REO Property.
"Disqualified Organization": Any of (i) the United States, any State
or political subdivision thereof, any possession of the United States, or any
agency or instrumentality of any of the foregoing (other than an instrumentality
which is a corporation if all of its activities are subject to tax and, except
for FHLMC, a majority of its board of directors is not selected by such
governmental unit), (ii) a foreign government, any international organization,
or any agency or instrumentality of any of the foregoing, (iii) any organization
(other than certain farmers' cooperatives described in Section 521 of the Code)
which is exempt from the tax imposed by Chapter 1 of the Code (including the tax
imposed by Section 511 of the Code on unrelated business taxable income), (iv)
rural electric and telephone cooperatives described in Section 1381(a)(2)(C) of
the Code and (v) any other Person so designated by the REMIC Administrator based
upon an Opinion of Counsel that the holding of an Ownership Interest in a
Residual Certificate by such Person may cause either the Upper-Tier REMIC or the
Lower-Tier REMIC to fail to qualify as a REMIC or any Person having an Ownership
Interest in any Class of Certificates (other than such Person) to incur a
liability for any federal tax imposed under the Code that would not otherwise be
imposed but for the Transfer of an Ownership Interest in a Residual Certificate
to such Person. The terms "United States", "State" and "international
organization" shall have the meanings set forth in Section 7701 of the Code or
successor provisions.
"Distributable Certificate Interest": With respect to any Distribution
Date, as to any Class of REMIC Regular Certificates, the Accrued Certificate
Interest in respect of such Class of REMIC Regular Certificates for such
Distribution Date, reduced (to not less than zero) by any allocations to such
Class of Certificates of any Appraisal Reduction Amount for such Distribution
Date.
"Distribution Accounts": Collectively, the Upper-Tier Distribution
Account and the Lower-Tier Distribution Account.
"Distribution Date": The 20th day of any month, or if such 20th day is
not a Business Day, the Business Day immediately following, commencing on June
20, 1996.
<PAGE>
"Due Date": With respect to (i) any Mortgage Loan on or prior to its
Maturity Date, the day of the month set forth in the related Mortgage Note on
which each Monthly Payment thereon is scheduled to be first due; (ii) any
Mortgage Loan after the Maturity Date therefor, the day of the month set forth
in the related Mortgage Note on which each Monthly Payment on such Mortgage Loan
had been scheduled to be first due; and (iii) any REO Loan, the day of the month
set forth in the related Mortgage Note on which each Monthly Payment on the
related Mortgage Loan had been scheduled to be first due.
"Due Period": With respect to any Distribution Date, the period
commencing on the second day of the month preceding the month in which such
Distribution Date occurs and ending on the first day of the month in which such
Distribution Date occurs.
"Effective 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"), the related Net Mortgage Rate in effect as of the commencement of the
most recently ended Due Period, 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 one month period preceding the
related Due Date in the most recently ended Due Period in order to produce the
aggregate amount of interest (adjusted to the related Net Mortgage Rate in
effect as of the commencement of the most recently ended Due Period) actually
accrued during such one month period.
"Eligible Account": Either (i) an account or accounts maintained with
a federal or state chartered depository institution or trust company the
long-term unsecured debt obligations of which are rated at least "AA-" by S&P
and "A" by DCR if the deposits are to be held in such account for more than 30
days or the short-term debt obligations of which have a short-term rating of not
less than "A-1" from S&P and "D-1" from DCR if the deposits are to be held in
such account for less than 30 days, or such other account or accounts with
respect to which each of the Rating Agencies shall have confirmed in writing
that the then current rating assigned to any of the Certificates that are
currently being rated by such Rating Agency will not be qualified, downgraded or
withdrawn by reason thereof, or (ii) a segregated trust account or accounts
maintained with the corporate trust department of a federal or state chartered
depository institution or trust company that, in either case, has corporate
trust powers, acting in its fiduciary capacity; provided that any state
chartered depository institution or trust company is subject to regulation
regarding fiduciary funds substantially similar to 12 C.F.R. ss. 9.10(b).
Eligible Accounts may bear interest. No Eligible Account shall be evidenced by a
certificate of deposit, passbook or other similar instrument.
"Eligible Investor": Either (i) a Qualified Institutional Buyer that
is purchasing for its own account or for the account of a Qualified
Institutional Buyer to whom notice is given that the offer, sale or transfer is
being made in reliance on Rule 144A, or (ii) an Institutional Accredited
Investor.
<PAGE>
"Environmental Assessment": A "Phase I assessment" as
described in, and meeting the criteria of, (i) Chapter 5 of the FNMA Multifamily
Guide or any successor provisions covering the same subject matter, in the case
of Specially Serviced Mortgage Loans as to which the related Mortgaged Property
is multi-family property, or (ii) the American Society for Testing and Materials
in the case of Specially Serviced Mortgage Loans as to which the related
Mortgaged Property is a non-multifamily property.
"ERISA": The Employee Retirement Income Security Act of 1974, as
amended.
"Escrow Payment": Any payment received by the Master Servicer for the
account of any Mortgagor for application toward the payment of real estate
taxes, assessments, insurance premiums, ground rents (if applicable) and similar
items in respect of the related Mortgaged Property, including amounts for
deposit to any reserve account.
"Event of Default": One or more of the events described in Section
7.01(a).
"Exchange Act": The Securities Exchange Act of 1934, as amended from
time to time.
"Extension Adviser": As defined in Section 3.26. The initial Extension
Adviser will be the Trustee or a designee of the Trustee.
"FDIC": Federal Deposit Insurance Corporation or any successor.
"FHLMC": Federal Home Loan Mortgage Corporation or any successor.
"Final Recovery Determination": A determination by the Special
Servicer with respect to any Defaulted Mortgage Loan or REO Property (other than
a Mortgage Loan or REO Property, as the case may be, that was purchased by the
Mortgage Loan Seller pursuant to Section 3 of the Mortgage Loan Purchase
Agreement, by the Master Servicer or the Special Servicer pursuant to Section
3.18(b), or by the Master Servicer or the Depositor pursuant to Section 9.01)
that there has been a recovery of all Insurance Proceeds, Liquidation Proceeds
and other payments or recoveries that, in the Special Servicer's judgment,
exercised without regard to any obligation of the Special Servicer to make
payments from its own funds pursuant to Section 3.07(b), will ultimately be
recoverable.
"FNMA": Federal National Mortgage Association or any successor.
"Hazardous Materials": Any dangerous, toxic or hazardous pollutants,
chemicals, wastes, or substances, including, without limitation, those so
identified pursuant to CERCLA or any other federal, state or local environmental
related laws and regulations, and specifically including, without limitation,
asbestos and asbestos-containing materials, polychlorinated biphenyls, radon
gas, petroleum and petroleum products, urea formaldehyde and any substances
classified as being "in inventory", "usable work in process" or similar
classification which would, if classified as unusable, be included in the
foregoing definition.
<PAGE>
"Independent": When used with respect to any specified Person, any
such Person who (i) is in fact independent of the Depositor, the Master
Servicer, the Special Servicer 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 Master Servicer, the Special Servicer or
any Affiliate thereof, and (iii) is not connected with the Depositor, the Master
Servicer, the Special Servicer 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 Master Servicer, the Special Servicer or any Affiliate
thereof merely because such Person is the beneficial owner of 1% or less of any
class of securities issued by the Depositor, the Master Servicer or any
Affiliate thereof, as the case may be.
"Independent Contractor": Either (i) any Person that would be an
"independent contractor" with respect to the Trust within the meaning of Section
856(d)(3) of the Code if the Trust were a real estate investment trust (except
that the ownership test set forth in that section shall be considered to be met
by any Person that owns, directly or indirectly, 35% or more of any Class of
Certificates, or such other interest in any Class of Certificates as is set
forth in an Opinion of Counsel, which shall be at no expense to the Trustee, the
REMIC Administrator or the Trust, delivered to the Trustee and the REMIC
Administrator), so long as the Trust does not receive or derive any income from
such Person and provided that the relationship between such Person and the Trust
is at arm's length, all within the meaning of Treasury Regulation Section
1.856-4(b)(5) (except that the Master Servicer or Special Servicer shall not be
considered to be an Independent Contractor under the definition in this clause
(i) unless an Opinion of Counsel has been delivered to the Trustee to that
effect), or (ii) any other Person (including the Master Servicer and the Special
Servicer) 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 Fund, to the effect that the taking of any action in respect of any
REO Property by such Person, subject to any conditions therein specified, that
is otherwise herein contemplated to be taken by an Independent Contractor will
not cause such REO Property to cease to qualify as "foreclosure property" within
the meaning of Section 860G(a)(8) of the Code, or cause any income realized in
respect of such REO Property to fail to qualify as Rents from Real Property.
"Institutional Accredited Investor": As defined in Section 5.02(b).
"Insurance Policy": With respect to any Mortgage Loan, any hazard
insurance policy, flood insurance policy, title policy or other insurance policy
that is maintained from time to time in respect of such Mortgage Loan or the
related Mortgaged Property.
"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 released to the Mortgagor, in either case, in accordance with the
Servicing Standards.
<PAGE>
"Interest Accrual Period": With respect to any Class of REMIC Regular
Certificates or Uncertificated Lower-Tier Interests and any Distribution Date,
the period beginning on the first day of the calendar month preceding the
calendar month in which the related Distribution Date occurs and ending on the
last day of the calendar month preceding the calendar month in which such
Distribution Date occurs.
"Interest Distribution Amount": With respect to any Class of REMIC
Regular Certificates for any Distribution Date, an amount equal to the sum of
the Distributable Certificate Interest and the Class Unpaid Interest Shortfall
with respect to such Class of REMIC Regular Certificates for such Distribution
Date.
"Interested Person": The Depositor, the Master Servicer, the Special
Servicer, the REMIC Administrator, any Holder of a Certificate, or any Affiliate
of any such Person.
"Investment Account": As defined in Section 3.06(a).
"Investment Grade": With respect to any Certificate, ratings assigned
to such Certificate by S&P and DCR no lower than "BBB-".
"Investment Representation Letter": As defined in Section 5.02(b).
"Issue Price": With respect to each Class of Certificates, the "issue
price" as defined in the REMIC Provisions.
"Late Collections": With respect to any Mortgage Loan, all amounts
received thereon during any Due Period, whether as payments, Insurance Proceeds,
Liquidation Proceeds or otherwise, which represent late payments or collections
of principal or interest due in respect of such Mortgage Loan (without regard to
any acceleration of amounts due thereunder by reason of default) on a Due Date
in a previous Due Period and not previously recovered. With respect to any REO
Loan, all amounts received in connection with the related REO Property during
any Due Period, whether as Insurance Proceeds, Liquidation Proceeds, REO
Revenues or otherwise, which represent late collections of principal or interest
due or deemed due in respect of such REO Loan or the predecessor Mortgage Loan
(without regard to any acceleration of amounts due under the predecessor
Mortgage Loan by reason of default) on a Due Date in a previous Due Period and
not previously recovered. The term "Late Collections" shall specifically exclude
Penalty Charges.
"LIHTC Mortgage Loan": A low income housing tax credit Mortgage Loan.
"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 pursuant to Section 3 of the
Mortgage Loan Purchase Agreement; (iv) such Mortgage Loan is purchased by the
Master Servicer or the Special Servicer pursuant to Section 3.18(b); or (v) such
Mortgage Loan is purchased by the Master Servicer or Depositor pursuant to
Section 9.01. With respect to any REO Property (and the related REO Loan), any
of the following events: (i) a Final Recovery Determination is made with respect
to such REO Property; or (ii) such REO Property is purchased by the Master
Servicer or the Depositor pursuant to Section 9.01.
<PAGE>
"Liquidation Proceeds": Cash amounts (other than Insurance Proceeds
and REO Revenues) received or paid by the Master 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 security for a defaulted Mortgage Loan, through
trustee's sale, foreclosure sale, REO Disposition or otherwise, exclusive of any
portion thereof required to be released to the related Mortgagor in accordance
with applicable law and the terms and conditions of the related Mortgage Note
and Mortgage; (iii) the realization upon any deficiency judgment obtained
against a Mortgagor; (iv) the purchase of a Defaulted Mortgage Loan by the
Master Servicer or the Special Servicer pursuant to Section 3.18(b) or any other
sale thereof pursuant to Section 3.18(c); (v) the repurchase of a Mortgage Loan
by the Mortgage Loan Seller pursuant to Section 3 of the Mortgage Loan Purchase
Agreement; or (vi) the purchase of a Mortgage Loan or REO Property by the Master
Servicer or the Depositor pursuant to Section 9.01.
"Loan Disposition Fee": As defined in Section 3.11(b).
"Loan-to-Value Ratio": With respect to any Mortgage Loan, as of any
date of determination, the fraction, expressed as a percentage, the numerator of
which is the then unpaid principal balance of such Mortgage Loan, and the
denominator of which is the Original Value of the related Mortgaged Property.
"Lock-out Period": With respect to any Mortgage Loan, a specified
period of time after the date of origination of such Mortgage Loan during which
voluntary Principal Prepayments on such Mortgage Loan are prohibited.
"Lower-Tier 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 "The Chase Manhattan Bank, N.A.,
as Trustee, in trust for the registered holders of NationsLink Funding
Corporation, Commercial Mortgage Pass-Through Certificates, Series 1996-1,
Lower-Tier Distribution Account". Any such account or accounts shall be an
Eligible Account.
"Lower-Tier Distribution Amount": As defined in Section 4.01(b)(iii).
"Lower-Tier Principal Amount": With respect to any Class of
Uncertificated Lower-Tier Interests (other than the Class LWAC Uncertificated
Interest), (i) on or prior to the first Distribution Date, an amount equal to
the initial principal amount of such Class as specified in Section 4.01(b)(i),
and (ii) as of any date of determination after the first Distribution Date, an
amount equal to the product of 0.01% and the Certificate Balance of such Class
of Related Certificates on the Distribution Date immediately prior to such date
of determination (determined as adjusted pursuant to Section 1.02(iii)). With
respect to the Class LWAC Uncertificated Interest, an amount equal to 99.99% of
the aggregate Stated Principal Balances of the Mortgage Loans as of the
preceding Distribution Date (after giving effect to the distribution of
principal on such Distribution Date), or the Cut-off Date in the case of the
first Distribution Date.
<PAGE>
"Lower-Tier REMIC": One of two separate REMICs comprising the Trust
Fund, the assets of which consist of the Mortgage Loans, any REO Property with
respect thereto, such amounts as shall from time to time be held in the
Certificate Account, the REO Account, if any, and the Lower-Tier Distribution
Account, and all other property included in the Trust Fund that is not in the
Upper-Tier REMIC.
"MAI": Member of the Appraisal Institute.
"Master Servicer": AMRESCO Management, Inc., a Texas corporation, and
its successor in interest, or any successor master servicer appointed as herein
provided.
"Master Servicing Fee": With respect to each Mortgage Loan and REO
Loan, the fee payable to the Master Servicer pursuant to the first paragraph of
Section 3.11(a).
"Master Servicing Fee Rate": With respect to each Mortgage Loan, the
rate specified on the Mortgage Loan Schedule.
"Maturity Date": With respect to any Mortgage Loan as of any date of
determination, the date on which the last payment of principal is due and
payable under the related Mortgage Note, after taking into account all Principal
Prepayments received prior to such date of determination, but without giving
effect to (i) any acceleration of the principal of such Mortgage Loan by reason
of default thereunder, (ii) any grace period permitted by the related Mortgage
Note, or (iii) any modification, waiver or amendment of such Mortgage Loan
granted or agreed to by the Master Servicer or the Special Servicer pursuant to
Section 3.20.
"Modification Fee": As defined in Section 3.11(b).
"Monthly Payment": With respect to any Mortgage Loan, the scheduled
monthly payment of principal and/or interest on such Mortgage Loan, including
any Balloon Payment, which is payable by a Mortgagor from time to time under the
related Mortgage Note and applicable law, without regard to any acceleration of
principal of such Mortgage Loan by reason of default thereunder or any
modification, waiver or amendment of such Mortgage Loan granted or agreed to by
the Master Servicer or the Special Servicer pursuant to Section 3.20.
"Mortgage": With respect to any Mortgage Loan, the mortgage, deed of
trust or other instrument securing a Mortgage Note and creating a lien on the
related Mortgaged Property.
"Mortgaged Property": The real property subject to the lien of a
Mortgage.
<PAGE>
"Mortgage File": With respect to any Mortgage Loan, collectively the
following documents:
(i) the original Mortgage Note, bearing all prior and intervening
endorsements showing a complete chain of endorsement from the originator of
the Mortgage Loan to the Mortgage Loan Seller, and further endorsed (at the
direction of the Depositor given pursuant to the Mortgage Loan Purchase
Agreement) by the Mortgage Loan Seller, on its face or by allonge attached
thereto, without recourse, to the order of the Trustee in the following
form: "Pay to the order of The Chase Manhattan Bank, N.A., as trustee for
the registered holders of NationsLink Funding Corporation, Commercial
Mortgage Pass-Through Certificates, Series 1996-1, without recourse,
representation or warranty, express or implied";
(ii) the original Mortgage (or a certified copy thereof from the
applicable recording office) and originals (or certified copies from the
applicable recording office) of any intervening assignments thereof showing
a complete chain of assignment from the originator of the Mortgage Loan to
the Mortgage Loan Seller, in each case with evidence of recording indicated
thereon;
(iii) an original assignment of the Mortgage, in recordable form,
executed by the Mortgage Loan Seller in favor of the Trustee in the
following form: "Pay to the order of The Chase Manhattan Bank, N.A., as
trustee for the registered holders of NationsLink Funding Corporation,
Commercial Mortgage Pass-Through Certificates, Series 1996-1, without
recourse, representation or warranty, express or implied";
(iv) an original or copy of any related Assignment of Leases (if such
item is a document separate from the Mortgage) and the originals or copies
of any intervening assignments thereof showing a complete chain of
assignment from the originator of the Mortgage Loan to the Mortgage Loan
Seller, in each case with evidence of recording thereon;
(v) an original assignment of any related Assignment of Leases (if
such item is a document separate from the Mortgage), in recordable form,
executed by the Mortgage Loan Seller in favor of the Trustee (in such
capacity);
(vi) an original or copy of any related Security Agreement (if such
item is a document separate from the Mortgage) and the originals or copies
of any intervening assignments thereof showing a complete chain of
assignment from the originator of the Mortgage Loan to the Mortgage Loan
Seller;
(vii) an original assignment of any related Security Agreement (if
such item is a document separate from the Mortgage), in recordable form,
executed by the Mortgage Loan Seller in favor of the Trustee (in such
capacity);
<PAGE>
(viii) originals or copies of all assumption, modification, written
assurance and substitution agreements, with evidence of recording thereon,
where appropriate, in those instances where the terms or provisions of the
Mortgage, Mortgage Note or any related security document have been modified
or the Mortgage Loan has been assumed;
(ix) the original lender's title insurance policy or a copy thereof
effective as of the date of the recordation of the Mortgage Loan, together
with all endorsements or riders that were issued with or subsequent to the
issuance of such policy, insuring the priority of the Mortgage as a first
lien on the Mortgagor's fee interest in the Mortgaged Property;
(x) the original or copy of any guaranty of the obligations of the
Mortgagor under the Mortgage Loan;
(xi) all UCC Financing Statements and continuation statements
sufficient to perfect (and maintain the perfection of) the security
interest held by the originator of the Mortgage Loan (and each assignee
prior to the Trustee) in and to the personalty of the Mortgagor at the
Mortgaged Property (in each case with evidence of filing thereon), and to
transfer such security interest to the Trustee;
(xii) the original power of attorney (with evidence of recording
thereon) granted by the Mortgagor if the Mortgage, Mortgage Note or other
document or instrument referred to above was not signed by the Mortgagor;
and
(xiii) 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 agreement between the
Depositor and the Mortgage Loan Seller, relating to the transfer of all of the
Mortgage Loan Seller's right, title and interest in and to the Mortgage Loans.
"Mortgage Loan Schedule": The list of Mortgage Loans transferred on
the Closing Date to the Trustee as part of the Trust Fund, attached hereto as
Exhibit B, which list sets forth the following information with respect to each
Mortgage Loan:
(i) the loan number;
(ii) the Mortgagor's name;
<PAGE>
(iii) the street address (including city, state and zip code) of the
related Mortgaged Property;
(iv) the Mortgage Rate in effect at origination;
(v) the Net Mortgage Rate in effect at the Cut-off Date;
(vi) the original principal balance;
(vii) the Cut-off Date Principal Balance;
(viii) the (A) original term to stated maturity, (B) remaining term to
stated maturity and (C) Maturity Date;
(ix) the original and remaining amortization terms;
(x) the amount of the Monthly Payment due on the first Due Date
following the Cut-off Date;
(xi) the Original Value of the related Mortgaged Property;
(xii) the Loan-to-Value Ratio at the Cut-off Date;
(xiii) a Debt Service Coverage Ratio calculated based on the most
recently available annual operating statements and the last day of the
period for which it was calculated; and
(xiv) the applicable Master Servicing Fee Rate.
Such schedule shall also set forth the aggregate of the amounts
described under clause (vii) above for all of the Mortgage Loans. Such list may
be in the form of more than one list, collectively setting forth all of the
information required.
"Mortgage Loan Seller": NationsBanc Mortgage Capital Corporation, a
Texas corporation, or its successor in interest.
"Mortgage Note": The original executed note evidencing the
indebtedness of a Mortgagor under a Mortgage Loan, together with any rider,
addendum or amendment thereto.
"Mortgage Rate": With respect to: (i) any Mortgage Loan on or prior to
its Maturity Date, the fixed annualized rate at which interest is scheduled (in
the absence of a default) to accrue on such Mortgage Loan from time to time in
accordance with the related Mortgage Note and applicable law; (ii) any Mortgage
Loan after its Maturity Date, the annualized rate described in clause (i) above
determined without regard to the passage of such Maturity Date; and (iii) any
REO Loan, the annualized rate described in clause (i) or (ii), as applicable,
above determined as if the predecessor Mortgage Loan had remained outstanding.
<PAGE>
"Mortgagor": The obligor or obligors on a Mortgage Note, including
without limitation, any Person that has acquired the related Mortgaged Property
and assumed the obligations of the original obligor under the Mortgage Note.
"Net Investment Earnings": With respect to either the Certificate
Account, the Distribution Accounts or the REO Account for any period from any
Distribution Date to the immediately succeeding P&I Advance Date, the amount, if
any, by which the aggregate of all interest and other income realized during
such period on funds relating to the Trust Fund held in such account, exceeds
the aggregate of all losses, if any, incurred during such period in connection
with the investment of such funds in accordance with Section 3.06.
"Net Investment Loss": With respect to either the Certificate Account,
the Distribution Accounts or the REO Account for any period from any
Distribution Date to the immediately succeeding P&I Advance Date, the amount by
which the aggregate of all losses, if any, incurred during such period in
connection with the investment of funds relating to the Trust Fund held in such
account in accordance with Section 3.06, exceeds the aggregate of all interest
and other income realized during such period on such funds.
"Net Mortgage Rate": With respect to any Mortgage Loan or REO Loan, as
of any date of determination, a rate per annum equal to the related Mortgage
Rate then in effect (or, if such Mortgage Rate has been reduced in connection
with a Debt Service Reduction, the Mortgage Rate that would then have been in
effect in the absence of such event) minus the Master Servicing Fee Rate and the
Trustee Fee Rate.
"Net Operating Income": With respect to any Mortgaged Property, for
any twelve month period, the total operating revenues derived from such
Mortgaged Property during such period, minus the total fixed and variable
operating expenses incurred in respect of such Mortgaged Property during such
period and capital expenditure reserves, other than (i) non-cash items such as
depreciation and amortization, (ii) actual capital expenditures and (iii) debt
service on loans secured by the Mortgaged Property.
"New Lease": Any lease of REO Property entered into at the direction
of the Special Servicer on behalf of the Trust, including any lease renewed,
modified or extended on behalf of the Trust, if the Trust has the right to
renegotiate the terms of such lease.
"Nonrecoverable Advance": Any Nonrecoverable P&I Advance or
Nonrecoverable Servicing Advance.
<PAGE>
"Nonrecoverable P&I Advance": Any P&I Advance previously made or
proposed to be made in respect of a Mortgage Loan or REO Loan which, in the
judgment of the Master Servicer or the Trustee, as applicable, will not be
ultimately recoverable from Late Collections or any other recovery on or in
respect of such Mortgage Loan or REO Loan. The determination by the Master
Servicer or the Trustee, as applicable, that it has made a Nonrecoverable P&I
Advance or that any proposed P&I Advance, if made, would constitute a
Nonrecoverable P&I Advance, shall be evidenced by an Officer's Certificate
delivered to the Trustee and the Depositor, in the case of the Master Servicer,
and to the Depositor, in the case of the Trustee. The Officer's Certificate
shall set forth such determination of nonrecoverability and the considerations
of the Master Servicer or the Trustee, as applicable, forming the basis of such
determination (which may include but shall not be limited to information, to the
extent available, such as related income and expense statements, rent rolls,
occupancy status, property inspections, and shall include an Appraisal of the
related Mortgage Loan or Mortgaged Property, the cost of which Appraisal shall
be advanced by the Master Servicer as a Servicing Advance). The Trustee will be
entitled to conclusively rely on the Master Servicer's determination that a P&I
Advance is nonrecoverable.
"Nonrecoverable Servicing Advance": Any Servicing Advance previously
made or proposed to be made in respect of a Mortgage Loan or REO Property which,
in the judgment of the Master Servicer or the Trustee, as the case may be, will
not be ultimately recoverable from Late Collections or any other recovery on or
in respect of such Mortgage Loan or REO Property. The determination by the
Master Servicer or the Trustee, as the case may be, that it has made a
Nonrecoverable Servicing Advance or that any proposed Servicing Advance, if
made, would constitute a Nonrecoverable Servicing Advance, shall be evidenced by
an Officer's Certificate delivered to the Trustee and the Depositor, in the case
of the Master Servicer, and to the Depositor, in the case of the Trustee. The
Officer's Certificate shall set forth such determination of nonrecoverability
and the considerations of the Master Servicer or the Trustee, as applicable,
forming the basis of such determination (which may include but shall not be
limited to information, to the extent available, such as related income and
expense statements, rent rolls, occupancy status, property inspections, and
shall include an Appraisal of the related Mortgage Loan or Mortgaged Property,
the cost of which Appraisal shall be advanced by the Master Servicer as a
Servicing Advance). The Trustee will be entitled to conclusively rely on the
Master Servicer's determination that a Servicing Advance is nonrecoverable.
"Non-Registered Certificate": Unless and until registered under the
Securities Act, any Class IO, Class F, Class G, Class H, Class UR, Class R or
Class LR Certificate.
"Non-U.S. Person": Any person other than a U.S. Person, unless, with
respect to the Transfer of a Residual Certificate, (i) such person holds such
Residual Certificate in connection with the conduct of a trade or business
within the United States and furnishes the Transferor and the Trustee with an
effective Internal Revenue Service Form 4224 or (ii) the Transferee delivers to
both the Transferor and the Trustee an opinion of a nationally recognized tax
counsel to the effect that such Transfer is in accordance with the requirements
of the Code and the regulations promulgated thereunder and that such Transfer of
the Residual Certificate will not be disregarded for federal income tax
purposes.
"Notional Amount": With respect to any Distribution Date, an amount
equal to 99.99% of the aggregate Stated Principal Balances of the Mortgage Loans
as of the preceding Distribution Date (after giving effect to the distributions
of principal on such Distribution Date), or the Cut-off Date in the case of the
first Distribution Date.
<PAGE>
"Offered Certificates": The Class A, Class B, Class C, Class D and
Class E Certificates.
"Officer's Certificate": A certificate signed by a Servicing Officer
of the Master Servicer or the Special Servicer, as the case may be, or a
Responsible Officer of the Trustee.
"Opinion of Counsel": A written opinion of counsel, who may, without
limitation, be salaried counsel for the Depositor, the Master Servicer or the
Special Servicer, acceptable in form and delivered to the Trustee, except that
any opinion of counsel relating to (a) the qualification of the Upper-Tier REMIC
or Lower-Tier REMIC as a REMIC, (b) compliance with the REMIC Provisions, or (c)
the resignation of the Master Servicer, the Special Servicer, the Depositor or
the REMIC Administrator pursuant to Section 6.04, must be an opinion of counsel
who is in fact Independent of the Depositor, the Master Servicer, the Special
Servicer or the REMIC Administrator, as applicable.
"Original Certificate Balance": With respect to any Class of REMIC
Regular Certificates (other than the Class IO Certificates), the initial
aggregate principal amount thereof as of the Closing Date, in each case as
specified in the Preliminary Statement.
"Original Notional Amount": With respect to the Class IO Certificates,
the initial aggregate Notional Amount as of the Closing Date, in each case as
specified in the Preliminary Statement.
"Original Value": The Appraised Value of a Mortgaged Property based
upon the Appraisal conducted in connection with the origination of the related
Mortgage Loan.
"OTS": The Office of Thrift Supervision or any successor thereto.
"Ownership Interest": As to any Certificate, any ownership or security
interest in such Certificate as the Holder thereof and any other interest
therein, whether direct or indirect, legal or beneficial, as owner or as
pledgee.
"Pass-Through Rate": Any of the Class A-1 Pass-Through Rate, the Class
A-2 Pass-Through Rate, the Class A-3 Pass-Through Rate, the Class B Pass-Through
Rate, the Class C Pass-Through Rate, the Class D Pass-Through Rate, the Class E
Pass-Through Rate, the Class F Pass-Through Rate, the Class G Pass-Through Rate,
the Class H Pass-Through Rate, the Class UR Pass-Through Rate and the Class IO
Pass-Through Rate.
"Penalty Charges": With respect to any Mortgage Loan (or successor REO
Loan), any amounts actually collected thereon from the Mortgagor that represent
late payment charges or Default Interest, other than a Prepayment Premium or
Yield Maintenance Charge.
<PAGE>
"Percentage Interest": As to any Certificate, the percentage interest
evidenced thereby in distributions required to be made with respect to the
related Class. With respect to any REMIC Regular Certificate, the percentage
interest is equal to the initial denomination of such Certificate as of the
Closing Date divided by the initial Certificate Balance or Notional Amount, as
applicable, of such Class of Certificates as of the Closing Date. With respect
to a Residual Certificate, the percentage interest is set forth on the face
thereof.
"Permitted Investments": Any one or more of the following obligations
or securities, regardless whether issued by the Depositor, the Master Servicer,
the Special Servicer, the Trustee or any of their respective Affiliates and
having the required ratings, if any, provided for in this definition:
(i) direct obligations of, and obligations fully guaranteed as to
timely payment of principal and interest by, the United States of America,
FNMA, FHLMC or any agency or instrumentality of the United States of
America the obligations of which are backed by the full faith and credit of
the United States of America; provided that any obligation of, or guarantee
by, FNMA or FHLMC, other than an unsecured senior debt obligation of FNMA
or FHLMC, shall be a Permitted Investment only if such investment will be
acceptable to each of the Rating Agencies as evidenced in writing;
(ii) demand and time deposits, certificates of deposit, or bankers'
acceptances that mature in one year or less after the date of issuance and
are issued or held by any depository institution or trust company
incorporated or organized under the laws of the United States of America or
any State thereof and subject to supervision and examination by federal or
state banking authorities, so long as the commercial paper or other
short-term debt obligations of such depository institution or trust company
are rated at least "A-1+" by S&P and "D-1+" by DCR or are otherwise
acceptable to each of the Rating Agencies or the long-term debt obligations
of such depository institution or trust company have the Certificate
Rating;
(iii) any demand or time deposit or certificate of deposit that is
fully insured by FDIC;
(iv) repurchase agreements or obligations with respect to any security
described in clause (i) above where such security has a remaining maturity
of one year or less and where such repurchase obligation has been entered
into with a depository institution or trust company (acting as principal)
described in clause (ii) above;
(v) debt obligations bearing interest or sold at a discount issued by
any corporation incorporated under the laws of the United States of America
or any state thereof, which securities have ratings from S&P and DCR at
least equal to the highest long-term credit ratings assigned by S&P and
DCR, unless otherwise specified in writing by each of the Rating Agencies;
provided that securities issued by any particular corporation will not be
Permitted Investments to the extent that investment therein will cause the
then-outstanding principal amount of securities issued by such corporation
and held in the accounts established hereunder to exceed 10% of the sum of
the aggregate principal balance and the aggregate principal amount of all
Permitted Investments in such accounts;
<PAGE>
(vi) commercial paper (including both non-interest-bearing discount
obligations and interest-bearing obligations payable on demand or on a
specified date maturing in one year or less after the date of issuance
thereof and which is rated at least "A-1+" by S&P and "D-1+" by DCR;
(vii) units of investment funds, including money market funds, rated
in the highest category by S&P and by DCR;
(viii) certificates or receipts representing ownership interests in
future interest or principal payments on obligations described in clause
(i) above and the Rating Agencies have confirmed in writing that such
investments will not lead to the downgrading, withdrawal or qualification
of any rating then assigned by the Rating Agencies to any Certificate; and
(ix) any other demand, money market or time deposit, obligation,
security or investment, (A) with respect to which each Rating Agency shall
have confirmed in writing that such investment will not result in a
downgrade, qualification or withdrawal of the then-current rating of the
Certificates that are currently being rated by such Rating Agency and (B)
which qualifies as a "cash flow investment" pursuant to Section 860G(a)(6)
of the Code;
provided, however, that in each case, if the investment is rated by S&P, (A) it
shall not have an "r" highlighter affixed to its rating from S&P, (B) it shall
have a predetermined fixed dollar of principal due at maturity that cannot vary
or change and (C) any such investment that provides for a variable rate of
interest must have an interest rate that is tied to a single interest rate index
plus a fixed spread, if any; and provided, further, however, that no such
instrument shall be a Permitted Investment (A) if such instrument evidences
principal and interest payments derived from obligations underlying such
instrument and the interest payments with respect to such instrument provide a
yield to maturity at the time of acquisition of greater than 120% of the yield
to maturity at par of such underlying obligations or (B) if such instrument may
be redeemed at a price below the purchase price; and provided, further, however,
that no amount beneficially owned by either the Upper-Tier REMIC or the
Lower-Tier REMIC (even if not yet deposited in the Trust) may be invested in
investments (other than money market funds) treated as equity interests for
federal income tax purposes, unless the Master Servicer receives an Opinion of
Counsel, at its own expense, to the effect that such investment will not
adversely affect the status of either the Upper-Tier REMIC or the Lower-Tier
REMIC as a REMIC under the Code or result in imposition of a tax on any such
Upper-Tier REMIC or Lower-Tier REMIC. Permitted Investments that are subject to
prepayment or call may not be purchased at a price in excess of par.
"Person": Any individual, corporation, partnership, limited liability
company, joint venture, association, joint-stock company, trust, unincorporated
organization or government or any agency or political subdivision thereof.
"P&I Advance": As to any Mortgage Loan or REO Loan, any advance made
by the Master Servicer or the Trustee, as applicable, pursuant to Sections 4.03
or 7.05.
<PAGE>
"P&I Advance Date": The Business Day immediately prior to each
Distribution Date.
"P&I Advance Determination Date": With respect to any Distribution
Date, the 15th day of the month in which such Distribution Date occurs, or if
such 15th day is not a Business Day, the Business Day immediately succeeding
such date.
"Plan": As defined in Section 5.02(c).
"Prepayment Assumption": A CPR (as defined in the Prospectus) of 0%
used for determining the accrual of original issue discount, market discount and
premium, if any, on the Certificates for federal income tax purposes.
"Prepayment Premium": Any premium, penalty or fee (other than a Yield
Maintenance Charge) paid or payable, as the context requires, by a Mortgagor in
connection with a Principal Prepayment.
"Principal Distribution Amount": With respect to any Distribution Date
and any Class of Certificates having a Certificate Balance, an amount (but no
more than would be necessary to reduce the aggregate Certificate Balances of
such Class of Certificates to zero) equal to the sum of (a) the Scheduled
Principal Distribution Amount for such Distribution Date and (b) the Unscheduled
Principal Distribution Amount for such Distribution Date.
"Principal Prepayment": Any payment of principal made by the Mortgagor
on a Mortgage Loan which is received in advance of its scheduled Due Date and
which is not accompanied by an amount of interest representing scheduled
interest due on any date or dates in any month or months subsequent to the month
of prepayment.
"Prospectus": The Prospectus dated May 2, 1996, as supplemented by the
Prospectus Supplement dated May 2, 1996, relating to the offering of the Offered
Certificates.
"PTE": As defined in Section 5.02(c).
"Purchase Price": With respect to any Mortgage Loan to be purchased by
the Mortgage Loan Seller pursuant to Section 3 of the Mortgage Loan Purchase
Agreement, by the Master Servicer or the Special Servicer pursuant to Section
3.18(b), or by the Master Servicer or Depositor pursuant to Section 9.01 or to
be otherwise sold pursuant to Section 3.18(c), a price equal to:
(i) the outstanding principal balance of such Mortgage Loan as of the
date of purchase; plus
(ii) all accrued and unpaid interest on such Mortgage Loan at the
related Mortgage Rate in effect from time to time to but not including the
Due Date in the Due Period of purchase; plus
<PAGE>
(iii) all related unreimbursed Servicing Advances and accrued and
unpaid interest on related Advances at the Reimbursement Rate, and unpaid
Special Servicing Fees allocable to such Mortgage Loan; plus
(iv) if such Mortgage Loan is being purchased by the Mortgage Loan
Seller pursuant to Section 3 of the Mortgage Loan Purchase Agreement, all
expenses reasonably incurred or to be incurred by the Master Servicer, the
Special Servicer, the Depositor and the Trustee in respect of the Breach or
Defect giving rise to the repurchase obligation, including any expenses
arising out of the enforcement of the repurchase obligation.
With respect to any REO Property to be sold pursuant to Section 3.18(c), the
amount calculated in accordance with the preceding sentence in respect of the
related REO Loan.
"Qualified Institutional Buyer": As defined in Section 5.02(b).
"Qualified Insurer": (i) With respect to any Mortgage Loan, REO Loan
or REO Property, an insurance company or security or bonding company qualified
to write the related Insurance Policy in the relevant jurisdiction with a
minimum claims paying ability rating of at least "A" by DCR and "BBB" by S&P,
or, if not rated by DCR, at least "A" or its equivalent by two other nationally
recognized statistical rating agencies, and (ii) with respect to the fidelity
bond and errors and omissions Insurance Policy required to be maintained
pursuant to Section 3.07(c), an insurance company that has a claims paying
ability rated no lower than two ratings below the rating assigned to the then
highest rated outstanding Certificate, but in no event lower than "BBB" by DCR
and S&P, or, in the case of clauses (i) and (ii), such other rating as each
Rating Agency shall have confirmed in writing will not cause such Rating Agency
to downgrade, qualify or withdraw the then current rating assigned to any of the
Certificates that are then currently being rated by such Rating Agency.
"Rated Final Distribution Date": As to each Class of Certificates,
January 20, 2028, the first Distribution Date after the 24th month following the
end of the amortization term for the Mortgage Loan that, as of the Cut-off Date,
has the longest remaining amortization term.
"Rating Agency": Each of S&P and DCR or their successors in interest.
If neither such rating agency nor any successor remains in existence, "Rating
Agency" shall be deemed to refer to such other nationally recognized statistical
rating agency or other comparable Person designated by the Depositor, notice of
which designation shall be given to the Trustee and the Master Servicer, and
specific ratings of S&P and DCR herein referenced shall be deemed to refer to
the equivalent ratings of the party so designated.
"Record Date": With respect to any Distribution Date, the last
Business Day of the month immediately preceding the month in which such
Distribution Date occurs.
<PAGE>
"Reimbursement Rate": The rate per annum applicable to the accrual of
interest on Servicing Advances in accordance with Section 3.03(d) and P&I
Advances in accordance with Section 4.03(d), which rate per annum shall equal
the "Prime Rate" published in the "Money Rates" section of The Wall Street
Journal (or, if such section or publication is no longer available, such other
comparable publication as determined by the Trustee in its reasonable
discretion) as may be in effect from time to time.
"Related Certificate" and "Related Uncertificated Lower-Tier
Interest": For any Class of Uncertificated Lower-Tier Interests, the related
Class of Certificates set forth below and for any Class of Certificates, the
related Class of Uncertificated Lower-Tier Interests set forth below:
Related Certificate Related Uncertificated
Lower-Tier Interest
Class A-1 Certificate Class LA-1 Uncertificated Interest
Class A-2 Certificate Class LA-2 Uncertificated Interest
Class A-3 Certificate Class LA-3 Uncertificated Interest
Class B Certificate Class LB Uncertificated Interest
Class C Certificate Class LC Uncertificated Interest
Class D Certificate Class LD Uncertificated Interest
Class E Certificate Class LE Uncertificated Interest
Class F Certificate Class LF Uncertificated Interest
Class G Certificate Class LG Uncertificated Interest
Class H Certificate Class LH Uncertificated Interest
Class UR Certificate Class LUR Uncertificated Interest
"REMIC": A "real estate mortgage investment conduit" as defined in
Section 860D of the Code (or any successor thereto).
"REMIC Administrator": NationsBanc Mortgage Capital Corporation, a
Texas corporation, and its successor in interest, or any successor REMIC
Administrator appointed as herein provided.
"REMIC Provisions": Provisions of the federal income tax law relating
to real estate mortgage investment conduits, which appear at Sections 860A
through 860G of Subchapter M of Chapter 1 of the Code, and related provisions,
and proposed, temporary and final Treasury regulations and any rulings
promulgated thereunder, as the foregoing may be in effect from time to time.
<PAGE>
"REMIC Regular Certificate": Any of the Class A, Class B, Class C,
Class D, Class E, Class F, Class G, Class H, Class UR and Class IO Certificates.
"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 "AMRESCO
Management, Inc., as Special Servicer, in trust for registered holders of
NationsLink Funding Corporation, Commercial Mortgage Pass-Through Certificates,
Series 1996-1, REO Account". Any such account or accounts shall be an Eligible
Account.
"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 3.03(d).
"REO Disposition Fee": As defined in Section 3.11(b).
"REO Extension": As defined in Section 3.16(a).
"REO Loan": The Mortgage Loan deemed for purposes hereof to be
outstanding with respect to each REO Property. Each REO Loan shall be deemed to
be outstanding for so long as the related REO Property remains part of the Trust
Fund as providing for monthly payments of interest only on each Due Date
therefor in the full amount of all interest accrued thereon at the applicable
Mortgage Rate during the related REO Loan Accrual Period, and otherwise as
having the same terms and conditions as its predecessor Mortgage Loan,
including, without limitation, with respect to the calculation of the Mortgage
Rate in effect from time to time (such terms and conditions to be applied
without regard to the default on such predecessor Mortgage Loan). Each REO Loan
shall be deemed to have an initial outstanding principal balance and Stated
Principal Balance equal to the outstanding principal balance and Stated
Principal Balance, respectively, of its predecessor Mortgage Loan as of the date
of the related REO Acquisition. All amounts due and owing in respect of the
predecessor Mortgage Loan as of the date of the related REO Acquisition,
including, without limitation, accrued and unpaid interest, shall continue to be
due and owing in respect of an REO Loan. All amounts payable or reimbursable to
the Master Servicer, the Special Servicer and/or the Trustee, as applicable, in
respect of the predecessor Mortgage Loan as of the date of the related REO
Acquisition, including, without limitation, any unpaid Servicing Fees and any
unreimbursed Advances, together with any interest accrued and payable to the
Master Servicer and/or the Trustee in respect of such Advances in accordance
with Section 3.03(d) and/or Section 4.03(d), shall continue to be payable or
reimbursable to the Master Servicer and/or the Trustee in respect of an REO
Loan. Collections in respect of each REO Loan (exclusive of amounts to be
applied to the payment of, or to be reimbursed to the Master Servicer or the
Special Servicer for the payment of, the costs of operating, managing and
maintaining the related REO Property) shall be treated: first, as a recovery of
accrued and unpaid interest on such REO Loan at the related Mortgage Rate in
effect from time to time to but not including the Due Date in the Due Period of
receipt; second, as a recovery of principal of such REO Loan to the extent of
its entire unpaid principal balance; and third, in accordance with the Servicing
Standards of the Master Servicer, as a recovery of any other amounts due and
owing in respect of such REO Loan, including, without limitation, Penalty
Charges.
<PAGE>
"REO Loan Accrual Period": With respect to any REO Loan and any Due
Date therefor, the one month period immediately preceding such Due Date.
"REO Property": A Mortgaged Property acquired by the Special Servicer
on behalf of, and in the name of, the Trustee for the benefit of the
Certificateholders through foreclosure, acceptance of a deed-in-lieu of
foreclosure or otherwise in accordance with applicable law in connection with
the default or imminent default of a Mortgage Loan.
"REO Revenues": All income, rents and profits derived from the
ownership, operation or leasing of any REO Property.
"Request for Release": A release signed by a Servicing Officer of the
Master Servicer or the Special Servicer, as applicable, in the form of Exhibit F
attached hereto.
"Residual Certificate": Any Class R Certificate or Class LR
Certificate issued, authenticated and delivered hereunder.
"Responsible Officer": When used with respect to the Trustee, the
Chairman or Vice Chairman of the Board of Directors or Trustees, the Chairman or
Vice Chairman of the Executive or Standing Committee of the Board of Directors
or Trustees, the President, the Chairman of the Committee on Trust Matters, any
vice president, any assistant vice president, the Secretary, any assistant
secretary, the Treasurer, any assistant treasurer, the Cashier, any assistant
cashier, any trust officer or assistant trust officer, the Controller and any
assistant controller 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.
"Scheduled Principal Distribution Amount": With respect to any
Distribution Date, the aggregate of the principal portions of (a) all Monthly
Payments (excluding Balloon Payments), due in respect of the Mortgage Loans
during or, if and to the extent not previously received or advanced pursuant to
Section 4.03 in respect of a preceding Distribution Date, prior to the related
Due Period, and all Assumed Scheduled Payments for the related Due Period, in
each case to the extent either (i) paid by the Mortgagor as of the Business Day
preceding the related P&I Advance Date (and not previously distributed to
Certificateholders) or (ii) advanced by the Master Servicer or the Trustee, as
applicable, pursuant to Section 4.03 in respect of such Distribution Date, and
(b) all Balloon Payments to the extent received during the related Due Period,
in the case of clauses (a) or (b) above to the extent included in the Available
Distribution Amount for such Distribution Date.
<PAGE>
"Securities Act": The Securities Act of 1933, as amended.
"Security Agreement": With respect to any Mortgage Loan, any security
agreement or equivalent instrument, whether contained in the related Mortgage or
executed separately, creating in favor of the holder of such Mortgage a security
interest in the personal property constituting security for repayment of such
Mortgage Loan.
"Senior Certificate": Any of the Class A Certificates or Class IO
Certificates.
"Servicing Account": The account or accounts created and maintained
pursuant to Section 3.03.
"Servicing Advances": All customary, reasonable and necessary "out of
pocket" costs and expenses (including attorneys' fees and expenses and fees of
real estate brokers) incurred by the Master Servicer in connection with the
servicing and administering of (a) a Mortgage Loan in respect of which a
default, delinquency or other unanticipated event has occurred or as to which a
default is reasonably foreseeable or (b) an REO Property, including, but not
limited to, the cost of (i) compliance with the Master Servicer's obligations
set forth in Section 3.03(c), (ii) the preservation, restoration and protection
of a Mortgaged Property, (iii) obtaining any Insurance Proceeds or any
Liquidation Proceeds of the nature described in clauses (i) - (iv) of the
definition of "Liquidation Proceeds", (iv) any enforcement or judicial
proceedings with respect to a Mortgaged Property, including foreclosures, and
(v) the operation, management, maintenance and liquidation of any REO Property.
"Servicing Fees": With respect to each Mortgage Loan and REO Loan, the
Master Servicing Fee and the Special Servicing Fee.
"Servicing Officer": Any officer and/or employee of the Master
Servicer or the Special Servicer involved in, or responsible for, the
administration and servicing of the Mortgage Loans, whose name and specimen
signature appear on a list of servicing officers furnished by the Master
Servicer to the Trustee and the Depositor on the Closing Date as such list may
be amended from time to time thereafter.
"Servicing Standards": As defined in Section 3.01(a).
"Servicing Transfer Event": With respect to any Mortgage Loan, the
occurrence of any of the following events:
(i) a payment default shall have occurred on such Mortgage Loan at its
original maturity date and the Master Servicer shall not have extended the
maturity of such Mortgage Loan within 31 days following its original
maturity date as permitted by Section 3.20(a) or a payment default occurs
on such Mortgage Loan at its extended maturity date; or
(ii) any Monthly Payment (other than a Balloon Payment) is more than
60 days delinquent; or
<PAGE>
(iii) the date upon which the Master Servicer determines that a
payment default has occurred or is imminent and is not likely to be cured
by the related Mortgagor within 60 days; or
(iv) 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
(v) the related Mortgagor shall consent 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
(vi) the related Mortgagor shall admit in writing its inability to pay
its debts generally as they become due, file a petition to take advantage
of any applicable insolvency or reorganization statute, make an assignment
for the benefit of its creditors, or voluntarily suspend payment of its
obligations; or
(vii) the Master Servicer has received notice of the foreclosure or
proposed foreclosure of any lien on the related Mortgaged Property.
"Similar Law": As defined in Section 5.02 (c).
"Special Servicer": The Master Servicer, or any successor special
servicer appointed as herein provided.
"Special Servicing Fee": With respect to each Specially Serviced
Mortgage Loan and REO Loan, the fee payable to the Special Servicer pursuant to
the first paragraph of Section 3.11(b).
"Special Servicing Fee Rate": With respect to each Specially Serviced
Mortgage Loan and each REO Loan, 0.50% per annum.
"Specially Serviced Mortgage Loan": As defined in Section 3.01(a).
"Startup Day": The day designated as such in Section 10.01(b).
"Stated Principal Balance": With respect to any Mortgage Loan, as of
any date of determination, an amount equal to (x) the Cut-off Date Principal
Balance of such Mortgage Loan, minus (y) the sum of:
(i) the principal portion of each Monthly Payment due on such Mortgage
Loan after the Cut-off Date, to the extent received from the Mortgagor or
advanced by the Master Servicer and distributed to Certificateholders on or
before such date of determination;
<PAGE>
(ii) all Principal Prepayments received with respect to such Mortgage
Loan after the Cut-off Date, to the extent distributed to
Certificateholders on or before such date of determination;
(iii) the principal portion of all Insurance Proceeds and Liquidation
Proceeds received with respect to such Mortgage Loan after the Cut-off
Date, to the extent distributed to Certificateholders on or before such
date of determination; and
(iv) any reduction in the outstanding principal balance of such
Mortgage Loan resulting from a Deficient Valuation that occurred prior to
the end of the Due Period for the most recent Distribution Date.
With respect to any REO Loan, as of any date of determination, an
amount equal to (x) the Stated Principal Balance of the predecessor Mortgage
Loan as of the date of the related REO Acquisition, minus (y) the sum of:
(i) the principal portion of any P&I Advance made with respect to the
predecessor Mortgage Loan on or after the date of the related REO
Acquisition, to the extent distributed to Certificateholders on or before
such date of determination; and
(ii) the principal portion of all Insurance Proceeds, Liquidation
Proceeds and REO Revenues received with respect to such REO Loan, to the
extent distributed to Certificateholders on or before such date of
determination.
A Mortgage Loan or an REO Loan shall be deemed to be part of the Trust
Fund and to have an outstanding Stated Principal Balance until the Distribution
Date on which the payments or other proceeds, if any, received in connection
with a Liquidation Event in respect thereof are to be (or, if no such payments
or other proceeds are received in connection with such Liquidation Event, would
have been) distributed to Certificateholders.
"Subordinate Certificate": Any Class B, Class C, Class D, Class E,
Class F, Class G, Class H or Class UR Certificate.
"Sub-Servicer": Any Person with which the Master Servicer or the
Special Servicer has entered into a Sub-Servicing Agreement.
"Sub-Servicing Agreement": The written contract between the Master
Servicer or the Special Servicer, as the case may be, and any Sub-Servicer
relating to servicing and administration of Mortgage Loans as provided in
Section 3.22.
"Substitute Collateral": As defined in Section 7.06.
<PAGE>
"Tax Returns": The federal income tax return on Internal Revenue
Service Form 1066, U.S. Real Estate Mortgage Investment Conduit Income Tax
Return, including Schedule Q thereto, Quarterly Notice to Residual Interest
Holders of REMIC Taxable Income or Net Loss Allocation, or any successor forms,
to be filed on behalf of each of the Upper-Tier REMIC and the Lower-Tier REMIC
due to its classification as a REMIC under the REMIC Provisions, together with
any and all other information, reports or returns that may be required to be
furnished to the Certificateholders or filed with the Internal Revenue Service
or any other governmental taxing authority under any applicable provisions of
federal, state or local tax laws.
"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.
"Transfer Affidavit": As defined in Section 5.02(d).
"Transferor": Any Person who is disposing by Transfer any Ownership
Interest in a Certificate.
"Transferor Letter": As defined in Section 5.02(d).
"Trust": The trust created hereby.
"Trust Fund": The segregated pool of assets subject hereto,
constituting the trust created hereby and to be administered hereunder,
consisting of: (i) the Mortgage Loans as from time to time are subject to this
Agreement and all payments under and proceeds of such Mortgage Loans received
after the Cut-off Date (other than payments of principal and interest due and
payable on such Mortgage Loans on or before the Cut-off Date), together with all
documents included in the related Mortgage Files; (ii) such funds or assets as
from time to time are deposited in the Certificate Account, the Distribution
Accounts and, if established, the REO Account; (iii) any REO Property; (iv) the
rights of the mortgagee under all Insurance Policies with respect to the
Mortgage Loans; and (v) the rights of the Depositor under Sections 2, 3 and 8 of
the Mortgage Loan Purchase Agreement.
"Trustee": The Chase Manhattan Bank, N.A., a national banking
association, in its capacity as trustee and its successors in interest, or any
successor trustee appointed as herein provided.
"Trustee Exception Report": As defined in Section 2.02(e).
"Trustee Fee": With respect to each Mortgage Loan and for any
Distribution Date, an amount per Interest Accrual Period equal to the product of
(i) one-twelfth of the Trustee Fee Rate multiplied by (ii) the Stated Principal
Balance of such Mortgage Loan as of the Due Date (after giving effect to all
payments of principal on such Mortgage Loan on such Due Date) in the month
preceding the month in which such Distribution Date occurs.
<PAGE>
"Trustee Fee Rate": A rate equal to 0.001% per annum.
"UCC": The Uniform Commercial Code, as enacted in each applicable
state.
"UCC Financing Statement": A financing statement executed and filed
pursuant to the Uniform Commercial Code, as in effect in the relevant
jurisdiction, or, in the case of Louisiana, the comparable provisions of
Louisiana law.
"Uncertificated Lower-Tier Interests": Any of the Class LA-1, Class
LA-2, Class LA-3, Class LB, Class LC, Class LD, Class LE, Class LF, Class LG,
Class LH, Class LUR and Class LWAC Uncertificated Interests.
"Underwriter": NationsBanc Capital Markets, Inc.
"Uninsured Cause": Any cause of damage to property subject to a
Mortgage such that the complete restoration of such property is not fully
reimbursable by the hazard insurance policies or flood insurance policies
required to be maintained pursuant to Section 3.07.
"Unscheduled Principal Distribution Amount": With respect to any
Distribution Date, the aggregate of:
(a) all Principal Prepayments received on the Mortgage Loans during
the related Due Period;
(b) the principal portions of all Liquidation Proceeds, Insurance
Proceeds and, if applicable, REO Revenues received with respect to the
Mortgage Loans and any REO Loans during the related Due Period, but in each
case only to the extent that such principal portion represents a recovery
of principal for which no advance was previously made pursuant to Section
4.03 in respect of a preceding Distribution Date; and
(c) any Appraisal Reduction Amount for such Distribution Date, but
only to the extent available for distribution from interest paid with
respect to the related Mortgage Loan prior to the receipt of Liquidation
Proceeds or any other final payment thereon otherwise distributable on the
Subordinate Certificates to which the related Appraisal Reduction is
allocated.
"Upper-Tier 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 "The Chase Manhattan Bank, N.A.,
as Trustee, in trust for the registered holders of NationsLink Funding
Corporation, Commercial Mortgage Pass-Through Certificates, Series 1996-1,
Upper-Tier Distribution Account". Any such account or accounts shall be an
Eligible Account.
<PAGE>
"Upper-Tier REMIC": One of the two separate REMICs comprising the
Trust Fund, the assets of which consist of the Uncertificated Lower-Tier
Interests and such amounts as shall from time to time be held in the Upper-Tier
Distribution Account.
"U.S. Person": A citizen or resident of the United States, a
corporation, partnership or other entity created or organized in, or under the
laws of, the United States or any political subdivision thereof, or an estate or
trust whose income is subject to United States federal income tax regardless of
its source.
"Voting Rights": The portion of the voting rights of all of the
Certificates which is allocated to any Certificate. At all times during the term
of this Agreement, the Voting Rights shall be allocated among the various
Classes of Certificateholders as follows: each Class of REMIC Regular
Certificates (other than the Class IO Certificates) shall be entitled to the
percentage of the Voting Rights equal to the aggregate Certificate Balance of
such Class divided by the aggregate Certificate Balance of the REMIC Regular
Certificates. Neither the Class IO, the Class R nor the Class LR Certificates
will be entitled to any Voting Rights. For purposes of determining Voting
Rights, the Certificate Balance of any Class shall be deemed to be reduced by
the amount allocated to such Class of any Appraisal Reductions related to
Mortgage Loans as to which Liquidation Proceeds or other final payment has not
yet been received. Voting Rights allocated to a Class of Certificateholders
shall be allocated among such Certificateholders in proportion to the Percentage
Interests evidenced by their respective Certificates.
"Yield Maintenance Charges": Payments paid or payable, as the context
requires, on a Mortgage Loan as the result of a Principal Prepayment thereon,
not otherwise due thereon in respect of principal or interest, which have been
calculated (based on Monthly Payments on such Mortgage Loan) to compensate the
maker for reinvestment losses based on the value of an interest rate index at or
near the time of prepayment. Prepayment Premiums, penalties and fees not so
calculated will not be considered "Yield Maintenance Charges."
SECTION 1.02. Certain Calculations.
--------------------
Unless otherwise specified herein, for purposes of determining amounts
with respect to the Certificates and the rights and obligations of the parties
hereto, the following provisions shall apply:
(i) All calculations of interest provided for herein shall be made on
the basis of a 360-day year consisting of twelve 30-day months.
<PAGE>
(ii) Any Mortgage Loan payment is deemed to be received on the date
such payment is actually received by the Master Servicer, the Special
Servicer or the Trustee; provided, however, that for purposes of
calculating distributions on the Certificates, Principal Prepayments with
respect to any Mortgage Loan are deemed to be received on the date they are
applied in accordance with the Servicing Standards consistent with the
terms of the related Mortgage Note and Mortgage to reduce the outstanding
principal balance of such Mortgage Loan on which interest accrues.
(iii) Any reference to the Certificate Balance of any Class of
Certificates on or as of a Distribution Date shall refer to the Certificate
Balance of such Class of Certificates on such Distribution Date after
giving effect to (A) any distributions made on such Distribution Date
pursuant to Section 4.01(a), (B) any Collateral Support Deficit allocated
to such Class on such Distribution Date pursuant to Section 4.04, and (C)
the addition of any Appraisal Reduction Amounts allocated to such Class and
added to such Certificate Balance pursuant to Section 4.05(a).
[End of Article I]
<PAGE>
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
ORIGINAL ISSUANCE OF CERTIFICATES
SECTION 2.01. Conveyance of Mortgage Loans.
----------------------------
(a) The Depositor, concurrently with the execution and delivery
hereof, does hereby assign to the Trustee without recourse for the benefit of
the Certificateholders all the right, title and interest of the Depositor,
including any security interest therein for the benefit of the Depositor, in, to
and under (i) the Mortgage Loans identified on the Mortgage Loan Schedule, (ii)
Sections 2, 3, and 8 of the Mortgage Loan Purchase Agreement and (iii) all other
assets included or to be included in the Trust Fund. Such assignment includes
all interest and principal received or receivable on or with respect to the
Mortgage Loans (other than payments of principal and interest due and payable on
the Mortgage Loans on or before the Cut-off Date). The transfer of the Mortgage
Loans and the related rights and property accomplished hereby is absolute and,
notwithstanding Section 11.07, is intended by the parties to constitute a sale.
(b) In connection with the Depositor's assignment pursuant to
subsection (a) above, the Depositor shall direct, and hereby represents and
warrants that it has directed, the Mortgage Loan Seller pursuant to the Mortgage
Loan Purchase Agreement to deliver to and deposit with, or cause to be delivered
to and deposited with, the Trustee or a Custodian appointed thereby, on or
before the Closing Date, the Mortgage File for each Mortgage Loan so assigned.
If the Mortgage Loan Seller cannot deliver, or cause to be delivered as to any
Mortgage Loan, the original Mortgage Note, the Mortgage Loan Seller shall
deliver a copy or duplicate original of such Mortgage Note, together with an
affidavit certifying that the original thereof has been lost or destroyed. If
the Mortgage Loan Seller cannot deliver, or cause to be delivered, as to any
Mortgage Loan, any of the documents and/or instruments referred to in clauses
(ii), (iv), (viii), (xi) and (xii) of the definition of "Mortgage File", with
evidence of recording thereon, solely because of a delay caused by the public
recording office where such document or instrument has been delivered for
recordation, the delivery requirements of the Mortgage Loan Purchase Agreement
and this Section 2.01(b) shall be deemed to have been satisfied as to such
missing document or instrument, and such missing document or instrument shall be
deemed to have been included in the Mortgage File, provided that a photocopy of
such missing document or instrument (certified by the Mortgage Loan Seller to be
a true and complete copy of the original thereof submitted for recording) is
delivered to the Trustee or a Custodian appointed thereby on or before the
Closing Date, and either the original of such missing document or instrument, or
a photocopy thereof (certified by the appropriate county recorder's office to be
a true and complete copy of the original thereof submitted for recording), with
evidence of recording thereon, is delivered to the Trustee or such Custodian
within 120 days of the Closing Date (or within such longer period after the
Closing Date as the Trustee may consent to, which consent shall not be
unreasonably withheld so long as the Mortgage Loan Seller is, as certified in
writing to the Trustee no less often than monthly, in good faith attempting to
obtain from the appropriate county recorder's office such original or
photocopy). If the Mortgage Loan Seller cannot deliver, or cause to be
delivered, as to any Mortgage Loan, any of the documents and/or instruments
referred to in clauses (ii), (iv), (viii), (xi) and (xii) of the definition of
"Mortgage File", with evidence of recording thereon, for any other reason,
including, without limitation, that such missing document or instrument has been
lost, the delivery requirements of the Mortgage Loan Purchase Agreement and this
Section 2.01(b) shall be deemed to have been satisfied as to such missing
document or instrument, and such missing document or instrument shall be deemed
to have been included in the Mortgage File, provided that a photocopy of such
missing document or instrument (with evidence of recording thereon and certified
by the appropriate county recorder's office to be a true and complete copy of
the original thereof submitted for recording) is delivered to the Trustee or a
Custodian appointed thereby on or before the Closing Date. Neither the Trustee
nor any Custodian shall in any way be liable for any failure by the Mortgage
Loan Seller or the Depositor to comply with the delivery requirements of the
Mortgage Loan Purchase Agreement and this Section 2.01(b), nor shall the Trustee
be in any way liable for consenting to any extension of the 120-day period
referred to in this Section 2.01(b).
<PAGE>
(c) Except under the circumstances provided for in the last sentence
of this subsection (c), the Trustee shall, as to each Mortgage Loan, deliver or
cause to be delivered to the Master Servicer, and the Master Servicer shall, as
to each Mortgage Loan, at the expense of the Mortgage Loan Seller, promptly (and
in any event within 90 days of the Closing Date) 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 to the Trustee referred to in clauses (iii) and (v) of the definition
of "Mortgage File" and each UCC-2 and UCC-3 to the Trustee referred to in clause
(xi) of the definition of "Mortgage File". Each such assignment shall reflect
that it should be returned by the public recording office to the Trustee
following recording, and each such UCC-2 and UCC-3 shall reflect that the file
copy thereof should be returned to the Trustee following filing. If any such
document or instrument is lost or returned unrecorded or unfiled, as the case
may be, because of a defect therein, the Trustee shall direct the Mortgage Loan
Seller pursuant to the Mortgage Loan Purchase Agreement promptly to prepare or
cause to be prepared a substitute therefor or cure such defect, as the case may
be, and thereafter the Master Servicer shall upon receipt thereof cause the same
to be duly recorded or filed, as appropriate. Notwithstanding the foregoing,
there shall be no requirement to record any assignment to the Trustee referred
to in clause (iii) or (v) of the definition of "Mortgage File", or to file any
UCC-2 or UCC-3 to the Trustee referred to in clause (xi) of the definition of
"Mortgage File", in those jurisdictions where, in the written opinion of local
counsel acceptable to the Depositor and the Trustee, such recordation and/or
filing is not required to protect the Trustee's interest in the related Mortgage
Loans against sale, further assignment, satisfaction or discharge by the
Mortgage Loan Seller, the Master Servicer, the Special Servicer, any
Sub-Servicer or the Depositor.
<PAGE>
(d) All documents and records in the Depositor's or Mortgage Loan
Seller's possession relating to the Mortgage Loans (including financial
statements, operating statements, and any other information provided by the
respective Mortgagor from time to time) that are not required to be a part of a
Mortgage File in accordance with the definition thereof shall be delivered to
the Master Servicer on or before the Closing Date and shall be held by the
Master Servicer on behalf of the Trustee in trust for the benefit of the
Certificateholders.
(e) In connection with the Depositor's assignment pursuant to
subsection (a) above, the Depositor shall deliver, and hereby represents and
warrants that it has delivered, to the Trustee and the Master Servicer, on or
before the Closing Date, a fully executed original counterpart of the Mortgage
Loan Purchase Agreement, as in full force and effect, without amendment or
modification, on the Closing Date.
SECTION 2.02. Acceptance by Trustee.
---------------------
(a) The Trustee, by the execution and delivery of this Agreement,
acknowledges receipt by it or a Custodian on its behalf, subject to the
provisions of Section 2.01 and to any exceptions noted on the Trustee Exception
Report, of the documents specified in clauses (i)-(iii), (ix), (xi) and (xii) of
the definition of "Mortgage File" with respect to each Mortgage Loan, of a fully
executed original counterpart of the Mortgage Loan Purchase Agreement and of all
other assets included in the Trust Fund, in good faith and without notice of any
adverse claim, and declares that it or a Custodian on its behalf holds and will
hold such documents and the other documents delivered or caused to be delivered
by the Mortgage Loan Seller constituting the Mortgage Files, and that it holds
and will hold such other assets included in the Trust Fund, in trust for the
exclusive use and benefit of all present and future Certificateholders.
(b) Within 45 days of the Closing Date, the Trustee or a Custodian on
its behalf shall review each of the Mortgage Loan documents delivered or caused
to be delivered by the Mortgage Loan Seller constituting the Mortgage Files;
and, promptly following such review, the Trustee shall 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 or any Mortgage Loan
specifically identified in any exception report annexed thereto as not being
covered by such certification), (i) all documents specified in clauses (i) -
(iii), (viii), (ix), (xi) and (xii) of the definition of "Mortgage File" are in
its possession, (ii) all documents delivered or caused to be delivered by the
Mortgage Loan Seller constituting the Mortgage Files have been reviewed by it or
by a Custodian on its behalf and appear regular on their face and relate to such
Mortgage Loan, and (iii) based on such examination and only as to the foregoing
documents, the information set forth in the Mortgage Loan Schedule with respect
to the items specified in clauses (i), (iv), (vi), (viii)(A) and (viii)(C) of
the definition of "Mortgage Loan Schedule" is correct.
<PAGE>
(c) The Trustee or a Custodian on its behalf shall review each of the
Mortgage Loan documents received thereby subsequent to the Closing Date; and, on
or about the first anniversary of the Closing Date, the Trustee shall certify in
writing to each of the Depositor, the 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 as to which a Liquidation Event has
occurred or any Mortgage Loan specifically identified in any exception report
annexed thereto as not being covered by such certification), (i) all documents
specified in clauses (i) - (iii), (viii), (ix), (xi) and (xii) of the definition
of "Mortgage File" are in its possession, (ii) it or a Custodian on its behalf
has received either a recorded original of each of the assignments specified in
clauses (iii) and, insofar as an unrecorded original thereof had been delivered
or caused to be delivered by the Mortgage Loan Seller, pursuant to clause (v) of
the definition of "Mortgage File" or a copy of such recorded original certified
by the applicable public recording office to be true and complete, (iii) all
Mortgage Loan documents received by it or any Custodian have been reviewed by it
or by such Custodian on its behalf and appear regular on their face and relate
to such Mortgage Loan, and (iv) based on the examinations referred to in
subsection (b) above and this subsection (c) and only as to the foregoing
documents, the information set forth in the Mortgage Loan Schedule with respect
to the items specified in clauses (i), (iv), (vi), (viii) (A) and (viii) (C) of
the definition of "Mortgage Loan Schedule" is correct.
(d) It is herein acknowledged that neither the Trustee nor any
Custodian is under any duty or obligation (i) to determine whether any of the
documents specified in clauses (iv) - (viii), (x) and (xiii) of the definition
of "Mortgage File" exist or are required to be delivered by the Depositor, the
Mortgage Loan Seller or any other Person or (ii) to inspect, review or examine
any of the documents, instruments, certificates or other papers relating to the
Mortgage Loans delivered to it to determine that the same are genuine,
enforceable 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 Mortgage Files or at any time
thereafter, the Trustee or any Custodian finds any document or documents
constituting a part of a Mortgage File to have not been properly executed or,
subject to Section 2.01(b), to have not been delivered, to contain information
that does not conform in any material respect with the corresponding information
set forth in the Mortgage Loan Schedule, or to be defective on its face (each, a
"Defect" in the related Mortgage File), the Trustee shall promptly so notify the
Depositor, the Master Servicer, the Special Servicer and the Mortgage Loan
Seller (and in no event later than 45 days after the Closing Date), by providing
a written report (the "Trustee Exception Report"), setting forth for each
affected Mortgage Loan, with particularity, the nature of such Defect.
SECTION 2.03. Representations, Warranties and Covenants of the
Depositor; Mortgage Loan Seller's Repurchase of
Mortgage Loans for Defects in Mortgage Files and
Breaches of Representations and Warranties.
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(a) The Depositor hereby represents and warrants that:
<PAGE>
(i) The Depositor is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware, and the
Depositor has taken all necessary corporate action to authorize the
execution, delivery and performance of this Agreement by it, and has the
power and authority to execute, deliver and perform this Agreement and all
the transactions contemplated hereby, including, but not limited to, the
power and authority to sell, assign and transfer the Mortgage Loans in
accordance with this Agreement;
(ii) Assuming the due authorization, execution and delivery of this
Agreement by each other party hereto, this Agreement and all of the
obligations of the Depositor hereunder are the legal, valid and binding
obligations of the Depositor, enforceable against the Depositor in
accordance with the terms of this Agreement, except as such enforcement may
be limited by bankruptcy, insolvency, reorganization or other similar laws
affecting the enforcement of creditors' rights generally, and by general
principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law);
(iii) The execution and delivery of this Agreement and the performance
of its obligations hereunder by the Depositor will not conflict with any
provisions of any law or regulations to which the Depositor is subject, or
conflict with, result in a breach of or constitute a default under any of
the terms, conditions or provisions of the certificate of incorporation or
the by-laws of the Depositor or any indenture, agreement or instrument to
which the Depositor is a party or by which it is bound, or any order or
decree applicable to the Depositor, or result in the creation or imposition
of any lien on any of the Depositor's assets or property, which would
materially and adversely affect the ability of the Depositor to carry out
the transactions contemplated by this Agreement; the Depositor has obtained
any consent, approval, authorization or order of any court or governmental
agency or body required for the execution, delivery and performance by the
Depositor of this Agreement;
(iv) There is no action, suit or proceeding pending or, to the
Depositor's knowledge, threatened against the Depositor in any court or by
or before any other governmental agency or instrumentality which would
materially and adversely affect the validity of the Mortgage Loans or the
ability of the Depositor to carry out the transactions contemplated by this
Agreement; and
(v) The Depositor is the lawful owner of the Mortgage Loans with the
full right to transfer the Mortgage Loans to the Trust and the Mortgage
Loans have been validly transferred to the Trust.
<PAGE>
(b) If any Certificateholder, the Master Servicer, the Special
Servicer or the Trustee discovers or receives notice of a Defect in any Mortgage
File or a breach of any representation or warranty set forth in, or required to
be made with respect to a Mortgage Loan by the Mortgage Loan Seller pursuant to,
the Mortgage Loan Purchase Agreement (a "Breach"), which Defect or Breach, as
the case may be, materially and adversely affects the value of any Mortgage Loan
or the interests of the Certificateholders therein, such Certificateholder, the
Master Servicer, the Special Servicer or the Trustee, as applicable, shall give
prompt written notice of such Defect or Breach, as the case may be, to the
Depositor, the Master Servicer, the Special Servicer and the Mortgage Loan
Seller and shall request that the Mortgage Loan Seller, not later than the
earlier of 90 days from the Mortgage Loan Seller's receipt of such notice or the
Mortgage Loan Seller's discovery of such Breach, cure such Defect or Breach, as
the case may be, in all material respects or repurchase the affected Mortgage
Loan at the applicable Purchase Price in conformity with the Mortgage Loan
Purchase Agreement. If the affected Mortgage Loan is to be repurchased, the
Trustee shall designate the Certificate Account as the account into which funds
in the amount of the Purchase Price are to be deposited by wire transfer.
(c) 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 to the Mortgage Loan Seller, upon delivery to each of the
Trustee, the Master Servicer and the Special Servicer of a trust receipt
executed by the Mortgage Loan Seller, all portions of the Mortgage File and
other documents pertaining to such Mortgage Loan possessed by it, and each
document that constitutes a part of the Mortgage File that was endorsed or
assigned to the Trustee shall be endorsed or assigned, as the case may be, to
the Mortgage Loan Seller in the same manner as provided in Section 3 of the
Mortgage Loan Purchase Agreement.
(d) Section 3 of the Mortgage Loan Purchase Agreement provides the
sole remedy available to the Certificateholders, or the Trustee on behalf of the
Certificateholders, respecting any Defect in a Mortgage File or any Breach of
any representation or warranty set forth in or required to be made pursuant to
Section 2 of the Mortgage Loan Purchase Agreement.
(e) The Master Servicer and the Special Servicer (in the case of
Specially Serviced Mortgage Loans) shall, for the benefit of the
Certificateholders, enforce the obligations of the Mortgage Loan Seller under
Section 3 of the Mortgage Loan Purchase Agreement. Such enforcement, including,
without limitation, the legal prosecution of claims, shall be carried out in
such form, to such extent and at such time as the Master Servicer or the Special
Servicer, as the case may be, would require were it, in its individual capacity,
the owner of the affected Mortgage Loan(s). The Master Servicer or the Special
Servicer, as the case may be, shall be reimbursed for the reasonable costs of
such enforcement: first, from a specific recovery of costs, expenses or
attorneys' fees against the Mortgage Loan Seller; second, pursuant to Section
3.05(a)(viii) out of the related Purchase Price, to the extent that such
expenses are a specific component thereof; and third, if at the conclusion of
such enforcement action it is determined that the amounts described in clauses
first and second are insufficient, then pursuant to Section 3.05(a)(ix) out of
general collections on the Mortgage Loans on deposit in the Certificate Account.
<PAGE>
SECTION 2.04. Execution of Certificates.
-------------------------
The Trustee hereby acknowledges the assignment to it of the Mortgage
Loans and, subject to Sections 2.01 and 2.02, the delivery to it or a Custodian
on its behalf of the Mortgage Files and a fully executed original counterpart of
the Mortgage Loan Purchase Agreement, together with the assignment to it of all
other assets included in the Trust Fund. Concurrently with such assignment and
delivery and in exchange therefor, the Trustee acknowledges the issuance of the
Uncertificated Lower-Tier Interests to the Depositor and the authentication and
delivery of the Class LR Certificates to or upon the order of the Depositor, in
exchange for the Mortgage Loans, receipt of which is hereby acknowledged, and,
immediately thereafter, the Trustee acknowledges that it has executed and caused
the Certificate Registrar to authenticate and deliver to or upon the order of
the Depositor, in exchange for the Uncertificated Lower-Tier Interests, the
REMIC Regular Certificates and the Class R Certificates, and the Depositor
hereby acknowledges the receipt by it or its designees, of such Certificates in
authorized Denominations evidencing the entire beneficial ownership of the
Upper-Tier REMIC.
[End of Article II]
<PAGE>
ARTICLE III
ADMINISTRATION AND SERVICING
OF THE TRUST FUND
SECTION 3.01. Master Servicer to Act as Master Servicer; Special
Servicer to act as Special Servicer; Administration of
the Mortgage Loans.
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(a) Each of the Master Servicer and the Special Servicer shall
diligently service and administer the Mortgage Loans it is obligated to service
pursuant to this Agreement on behalf of the Trustee and in the best interests of
and for the benefit of the Certificateholders (as determined by the Master
Servicer or the Special Servicer, as the case may be, in its good faith and
reasonable judgment) in accordance with applicable law, the terms of this
Agreement and the terms of the respective Mortgage Loans and, to the extent
consistent with the foregoing, and in accordance with the higher of the
following standards of care: (1) 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, services and administers similar mortgage loans
for other third-party portfolios, giving due consideration to the customary and
usual standards of practice of prudent institutional commercial and multifamily
mortgage lenders servicing their own mortgage loans and (2) the same care,
skill, prudence and diligence with which the Master Servicer or Special
Servicer, as the case may be, services and administers mortgage loans owned by
the Master Servicer or Special Servicer, as the case may be, if applicable, in
either case exercising reasonable business judgment and acting in accordance
with applicable law, the terms of this Agreement, the respective Mortgage Loans
or Specially Serviced Mortgage Loans, as applicable, and with a view to the
maximization of timely recovery of principal and interest on the Mortgage Loans
or Specially Serviced Mortgage Loans, as applicable, and the best interests of
the Trust and the Certificateholders, as determined by the Master Servicer or
Special Servicer, as the case may be, in its reasonable judgment, but without
regard to: (i) any relationship that the Master Servicer or the Special
Servicer, as the case may be, or any Affiliate thereof may have with the related
Mortgagor; (ii) the ownership of any Certificate by the Master Servicer or the
Special Servicer, as the case may be, or any Affiliate thereof; (iii) the Master
Servicer's obligation to make Advances; and (iv) the Master Servicer's or
Special Servicer's, as the case may be, right to receive compensation for its
services hereunder or with respect to any particular transaction (the foregoing,
collectively referred to as the "Servicing Standards"). Without limiting the
foregoing, subject to Section 3.21, the Special Servicer shall be obligated to
service and administer (i) any Mortgage Loans as to which a Servicing Transfer
Event has occurred and is continuing (the "Specially Serviced Mortgage Loans"),
and (ii) any REO Properties; provided, that the Master Servicer shall continue
to make all calculations, and prepare all reports to the Certificateholders,
required hereunder with respect to the Specially Serviced Mortgage Loans as if
no Servicing Transfer Event had occurred and with respect to the REO Properties
(and the related REO Loans) as if no REO Acquisition had occurred, and to render
such incidental services with respect to such Specially Serviced Mortgage Loans
and REO Properties as are specifically provided for herein. Each Mortgage Loan
that becomes a Specially Serviced Mortgage Loan shall continue as such until
satisfaction of the conditions specified in Section 3.21(a). Without limiting
the foregoing, subject to Section 3.21, the Master Servicer shall be obligated
to service and administer all Mortgage Loans which are not Specially Serviced
Mortgage Loans; provided, that the Special Servicer shall make the inspections,
use its reasonable best efforts to collect the statements and shall prepare the
reports in respect of the related Mortgaged Properties with respect to Specially
Serviced Mortgage Loans in accordance with Section 3.12.
<PAGE>
(b) Subject only to the Servicing Standards and the terms of this
Agreement and of the respective Mortgage Loans, 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, is hereby authorized and empowered by the Trustee and
obligated to execute and deliver, on behalf of the Certificateholders and the
Trustee or any of them, with respect to each Mortgage Loan it is obligated to
service under this Agreement, any and all financing statements, continuation
statements and other documents or instruments necessary to maintain the lien
created by the related Mortgage or other security document in the related
Mortgage File on the related Mortgaged Property and related collateral; subject
to Section 3.20, any and all modifications, waivers, amendments or consents to
or with respect to any documents contained in the related Mortgage File; and any
and all instruments of satisfaction or cancellation, or of partial or full
release or discharge, and all other comparable instruments. Subject to Section
3.10, the Trustee shall furnish, or cause to be furnished, to the Master
Servicer or the Special Servicer any powers of attorney and other documents
necessary or appropriate to enable the Master Servicer or the Special Servicer,
as the case may be, to carry out its servicing and administrative duties
hereunder; provided, however, that the Trustee shall not be held liable for any
negligence with respect to, or misuse of, any such power of attorney by the
Master Servicer or Special Servicer.
(c) The relationship of the Master 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.
(d) The Master Servicer is hereby appointed as the initial Special
Servicer. If the rights and obligations of the Master Servicer are terminated or
the Master Servicer resigns in accordance with the terms of this Agreement, the
rights and obligations of the Master Servicer as Special Servicer hereunder
shall be automatically, without further act, terminated.
SECTION 3.02. Collection of Mortgage Loan Payments.
------------------------------------
(a) 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
follow such collection procedures as are consistent with this Agreement
(including, without limitation, the Servicing Standards). Consistent with the
foregoing, the Master Servicer or the Special Servicer each may in its
discretion waive any Penalty Charge in connection with any delinquent payment on
a Mortgage Loan it is obligated to service hereunder.
<PAGE>
(b) All amounts collected on any Mortgage Loan in the form of payments
from Mortgagors, Insurance Proceeds or Liquidation Proceeds of the nature
described in clauses (i) through (iii) of the definition thereof shall be
applied to amounts due and owing under the related Mortgage Note and Mortgage
(including, without limitation, for principal and accrued and unpaid interest)
in accordance with the express provisions of the related Mortgage Note and
Mortgage and, in the absence of such express provisions, shall be applied (after
reimbursement to the Master Servicer and/or the Trustee for any related
Servicing Advances): first, as a recovery of accrued and unpaid interest on such
Mortgage Loan at the related Mortgage Rate in effect from time to time through
the date of receipt; second, 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; third, in accordance with the
Servicing Standards, as a recovery of any other amounts then due and owing under
such Mortgage Loan, including, without limitation, Prepayment Premiums, Yield
Maintenance Charges and Penalty Charges; and fourth, as a recovery of any
remaining principal of such Mortgage Loan to the extent of its entire remaining
unpaid principal balance. All amounts collected on any Mortgage Loan in the form
of Liquidation Proceeds of the nature described in clauses (iv) and (v) of the
definition thereof shall be deemed to be applied (after reimbursement to the
Master Servicer and/or the Trustee for related Servicing Advances): first, as a
recovery of accrued and unpaid interest on such Mortgage Loan at the related
Mortgage Rate in effect from time to time to but not including the Due Date in
the Due Period of receipt; second, as a recovery of principal of such Mortgage
Loan to the extent of its entire unpaid principal balance; and third, in
accordance with the Servicing Standards, as a recovery of any other amounts due
and owing on such Mortgage Loan, including, without limitation, Prepayment
Premiums, Yield Maintenance Charges and Penalty Charges. Amounts collected on
any REO Loan shall be deemed to be applied in accordance with the definition
thereof.
SECTION 3.03. Collection of Taxes, Assessments and Similar Items;
Servicing Accounts.
---------------------------------------------------
(a) The Master Servicer shall establish and maintain one or more
accounts (the "Servicing Accounts"), into which all Escrow Payments shall be
deposited and retained, and shall administer such Servicing Accounts in
accordance with the Mortgage Loan documents. Servicing Accounts shall be
Eligible Accounts. Withdrawals of amounts so deposited from a Servicing Account
may be made only to: (i) effect payment of real estate taxes, assessments,
insurance premiums, ground rents (if applicable) and comparable items; (ii)
reimburse the Master Servicer or the Trustee for any Servicing Advances; (iii)
refund to Mortgagors any sums as may be determined to be overages; (iv) pay
interest to Mortgagors on balances in the Servicing Account, if required by
applicable law or the terms of the related Mortgage Loan and as described below
or, if not so required, to the Master Servicer; (v) withdraw amounts deposited
in error; or (vi) clear and terminate the Servicing Account at the termination
of this Agreement in accordance with Section 9.01. As part of its servicing
duties, the Master Servicer shall pay or cause to be paid to the Mortgagors
interest on funds in Servicing Accounts, to the extent required by law or the
terms of the related Mortgage Loan.
<PAGE>
(b) The Special Servicer, in the case of REO Loans, and the Master
Servicer, in the case of all other Mortgage Loans, shall maintain accurate
records with respect to each related Mortgaged Property reflecting the status of
real estate taxes, assessments and other similar items that are or may become a
lien thereon and the status of insurance premiums and any ground rents payable
in respect thereof. The Special Servicer, in the case of REO Loans, and the
Master Servicer, in the case of all other Mortgage Loans, shall 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, employing for such purpose Escrow Payments (which shall be so
applied by the Master Servicer at the written direction of the Special Servicer
in the case of REO Loans) as allowed under the terms of the related Mortgage
Loan. To the extent that a Mortgage Loan does not require a Mortgagor to escrow
for the payment of real estate taxes, assessments, insurance premiums, ground
rents (if applicable) and similar items, the Special Servicer, in the case of
REO Loans, and the Master Servicer, in the case of all other Mortgage Loans,
shall require that payments in respect of such items be made by the Mortgagor at
the time they first become due.
(c) In accordance with the Servicing Standards and for all Mortgage
Loans, the Master Servicer shall advance with respect to each 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 that are
or may become a lien thereon, (ii) ground rents (if applicable), and (iii)
premiums on Insurance Policies, in each instance if and to the extent Escrow
Payments collected from the related Mortgagor are insufficient to pay such item
when due and the related Mortgagor has failed to pay such item on a timely
basis, and provided, however, that the particular advance would not, if made,
constitute a Nonrecoverable Servicing Advance and provided, further, however,
that with respect to the payment of taxes and assessments, the Master Servicer
shall not be required to make such advance until the earlier of five Business
Days after the Master Servicer has received confirmation that such item has not
been paid or the date prior to the date after which any penalty or interest
would accrue in respect of such taxes or assessments. The Special Servicer shall
give the Master Servicer not less than five Business Days' notice before the
date on which the Master Servicer is requested to make any Servicing Advance
with respect to a given Mortgage Loan; provided, however, that only two Business
Days' notice shall be required in respect of Servicing Advances required to be
made on an urgent or emergency basis (which may include, without limitation,
Servicing Advances required to make tax or insurance payments). In addition, the
Special Servicer shall provide the Master Servicer or the Trustee, as
applicable, with such information in its possession as the Master Servicer or
the Trustee as applicable, may reasonably request to enable the Master Servicer
or the Trustee, as applicable, to determine whether a requested Servicing
Advance would constitute a Nonrecoverable Advance. All such advances shall be
reimbursable in the first instance from related collections from the Mortgagors,
and further as provided in Section 3.05. No costs incurred by the Master
Servicer or the Special Servicer in effecting the payment of real estate taxes,
assessments and, if applicable, ground rents on or in respect of the Mortgaged
Properties shall, for purposes hereof, including, without limitation,
calculating monthly distributions to Certificateholders, be added to the unpaid
principal balances of the related Mortgage Loans, notwithstanding that the terms
of such Mortgage Loans so permit. The failure by the Master Servicer to make any
Servicing Advance as and when due shall constitute an Event of Default under
Section 7.01(a)(i) and the Trustee shall make such Servicing Advance pursuant to
Section 7.05.
<PAGE>
(d) In connection with its recovery of any Servicing Advance out of
the Certificate Account pursuant to Section 3.05(a), each of the Master Servicer
and the Trustee, as the case may be, shall be entitled to receive, out of any
amounts then on deposit in the Certificate Account, interest at the
Reimbursement Rate in effect from time to time, accrued on the amount of such
Servicing Advance from the date made to but not including the date of
reimbursement. The Master Servicer shall reimburse itself or the Trustee, as the
case may be, for any outstanding Servicing Advance as soon as practically
possible after funds available for such purpose are deposited in the Certificate
Account.
SECTION 3.04. The Certificate Account and the Lower-Tier and Upper-
Tier Distribution Accounts.
-------------------------------------------------------
(a) The Master Servicer shall establish and maintain a Certificate
Account in which the Master Servicer shall deposit or cause to be deposited on a
daily basis, except as otherwise specifically provided herein, the following
payments and collections received or made by or on behalf of it subsequent to
the Cut-off Date (other than in respect of principal and interest on the
Mortgage Loans due and payable on or before the Cut-off Date), or payments
(other than Principal Prepayments) received by it on or prior to the Cut-off
Date but allocable to a period subsequent thereto:
(i) all payments on account of principal, including Principal
Prepayments, on the Mortgage Loans;
(ii) all payments on account of interest (including, without
limitation, Default Interest) on the Mortgage Loans (net of the Servicing
Fees), late payment charges, Prepayment Premiums and Yield Maintenance
Charges;
(iii) all Insurance Proceeds and Liquidation Proceeds received in
respect of any Mortgage Loan or REO Property (other than Liquidation
Proceeds that are received in connection with the Master Servicer's or
Depositor's purchase of all the Mortgage Loans and any REO Properties in
the Trust Fund and that are to be deposited in the Lower-Tier Distribution
Account pursuant to Section 9.01);
(iv) any amounts required to be transferred from the REO Account
pursuant to Section 3.16(c);
(v) any amounts required to be deposited by the Master Servicer
pursuant to Section 3.06 in connection with losses incurred with respect to
Permitted Investments of funds held in the Certificate Account; and
<PAGE>
(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 hazard policy.
The foregoing requirements for deposit in the Certificate Account
shall be exclusive, it being understood and agreed that, without limiting the
generality of the foregoing, actual payments from Mortgagors in the nature of
Escrow Payments, charges for beneficiary statements or demands, assumption fees,
modification fees, extension fees or amounts collected for mortgagor checks
returned for insufficient funds need not be deposited by the Master Servicer in
the Certificate Account. 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. Assumption fees actually received from Mortgagors on
Specially Serviced Mortgage Loans shall be promptly delivered to the Special
Servicer as additional servicing compensation in accordance with the second
paragraph of Section 3.11(b).
Upon receipt of any of the foregoing amounts with respect to any
Specially Serviced Mortgage Loans, the Special Servicer shall remit within one
Business Day such amounts to the Master Servicer for deposit into the
Certificate Account in accordance with the second preceding paragraph. Any such
amounts received by the Special Servicer with respect to an REO Property shall
be deposited by the Special Servicer into the REO Account and remitted to the
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 promptly deliver any such check to the Master
Servicer by overnight courier.
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 Trustee, the Special Servicer and the
Depositor of the location of the Certificate Account as of the Closing Date and
of the new location of the Certificate Account prior to any change thereof.
(b) The Trustee shall establish and maintain the Lower-Tier
Distribution Account and the Upper-Tier Distribution Account in trust for the
benefit of the Certificateholders. The Master Servicer shall deliver to the
Trustee each month on or before the P&I Advance Date therein, for deposit in the
Lower-Tier Distribution Account, that portion of the Available Distribution
Amount (calculated without regard to clause (a)(iv), (a)(v), (a)(vi) and (c) of
the definition thereof) for the related Distribution Date then on deposit in the
Certificate Account.
In addition to the amounts required to be deposited in the Lower-Tier
Distribution Account pursuant to the foregoing paragraph, the Master Servicer
shall, as and when required hereunder, deliver to the Trustee for deposit in the
Lower-Tier Distribution Account:
<PAGE>
(i) 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 Lower-Tier Distribution Account;
(ii) any P&I Advances required to be made by the Master Servicer in
accordance with Section 4.03;
(iii) any Liquidation Proceeds paid by the Master Servicer or the
Depositor in connection with the purchase of all of the Mortgage Loans and
any REO Properties in the Trust Fund pursuant to Section 9.01 (exclusive of
that portion thereof required to be deposited in the Certificate Account
pursuant to Section 9.01); and
(iv) any other amounts required to be so delivered for deposit in the
Lower-Tier Distribution Account pursuant to any provision of this
Agreement.
The Trustee shall, upon receipt, deposit in the Lower-Tier
Distribution Account any and all amounts received by the Trustee that are
required by the terms of this Agreement to be deposited therein. The Trustee
shall deposit in the Lower-Tier Distribution Account any P&I Advances required
to be made by it in accordance with Section 7.05.
Immediately after the deposit of all funds in the Lower-Tier
Distribution Account and prior to the close of business on such P&I Advance
Date, the Trustee shall deposit in the Upper-Tier Distribution Account an
aggregate amount of immediately available funds equal to the Lower-Tier
Distribution Amount and the amount of any Prepayment Premiums and Yield
Maintenance Charges for such Distribution Date allocated in payment of the
Uncertificated Lower-Tier Interests as specified in Section 4.01(b)(ii) and
4.01(d), respectively.
Pursuant to Section 3.06, the Master Servicer shall deliver to the
Trustee for deposit in the Upper-Tier Distribution Account any amounts required
to be deposited therein in connection with losses incurred with respect to
Permitted Investments of funds held in the Upper-Tier Distribution Account.
Funds on deposit in the Upper-Tier Distribution Account, the
Lower-Tier Distribution Account and/or 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 Trustee and the Depositor of the
location of the Certificate Account as of the Closing Date and of the new
location of the Certificate Account prior to any charge thereof. The Trustee
shall give notice to the Master Servicer and the Depositor of the location of
the Upper-Tier Distribution Account and the Lower-Tier Distribution Account as
of the Closing Date and of the new location of the Distribution Accounts prior
to any change thereof.
<PAGE>
SECTION 3.05. Permitted Withdrawals From the Certificate Account and
the Distribution Account.
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(a) The Master Servicer may, from time to time, make withdrawals from
the Certificate Account for any of the following purposes:
(i) to remit to the Trustee for deposit in the Lower-Tier Distribution
Account the amounts required to be remitted pursuant to the first paragraph
of Section 3.04(b) or that may be applied to make P&I Advances pursuant to
Section 4.03(a);
(ii) to pay itself unpaid Master Servicing Fees and the Special
Servicer unpaid Special Servicing Fees in respect of each Mortgage Loan,
Specially Serviced Mortgage Loan and REO Loan, as applicable, the Master
Servicer's and Special Servicer's respective rights to payment pursuant to
this clause (ii) with respect to any Mortgage Loan, Specially Serviced
Mortgage Loan or REO Loan, as applicable, being limited to amounts received
on or in respect of such Mortgage Loan (whether in the form of payments,
Liquidation Proceeds or Insurance 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;
(iii) to pay the Extension Adviser its fees and expenses pursuant to
Section 3.25(d);
(iv) to reimburse itself or the Trustee, as applicable, for
unreimbursed P&I Advances, the Master Servicer's or the Trustee's right to
reimburse itself pursuant to this clause (iv) being limited to amounts
received which represent Late Collections of interest (net of the related
Servicing Fees) on and principal of the particular Mortgage Loans and REO
Loans with respect to which such P&I Advances were made;
(v) to reimburse itself or the Trustee, as applicable, for
unreimbursed Servicing Advances, the Master Servicer's or the Trustee's
respective rights to receive payment pursuant to this clause (v) with
respect to any Mortgage Loan or REO Property being limited to, as
applicable, related payments, Liquidation Proceeds, Insurance Proceeds and
REO Revenues;
(vi) to reimburse itself or the Trustee, as applicable, for
Nonrecoverable Advances out of general collections on the Mortgage Loans
and REO Properties;
(vii) at such time as it reimburses itself or the Trustee, as
applicable, for (A) any unreimbursed P&I Advance pursuant to clause (iv)
above, to pay itself or the Trustee, as applicable, any interest accrued
and payable thereon in accordance with Section 4.03(d), (B) any
unreimbursed Servicing Advance pursuant to clause (v) above, to pay itself
or the Trustee, as the case may be, any interest accrued and payable
thereon in accordance with Section 3.03(d), or (C) any Nonrecoverable
Advances pursuant to clause (vi) above, to pay itself or the Trustee, as
the case may be, any interest accrued and payable thereon;
<PAGE>
(viii) to reimburse itself, the Special Servicer, the Depositor or the
Trustee, as the case may be, for any unreimbursed expenses reasonably
incurred by such Person in respect of any Breach or Defect giving rise to a
repurchase obligation of the Mortgage Loan Seller under Section 3 of the
Mortgage Loan Purchase Agreement, including, without limitation, any
expenses arising out of the enforcement of the repurchase obligation, each
such Person's right to reimbursement pursuant to this clause (viii) with
respect to any Mortgage Loan being limited to that portion of the Purchase
Price paid for such Mortgage Loan that represents such expense in
accordance with clause (iv) of the definition of Purchase Price;
(ix) in accordance with Section 2.03(d), to reimburse itself, the
Special Servicer or the Trustee, as the case may be, out of general
collections on the Mortgage Loans and REO Properties for any unreimbursed
expense reasonably incurred by such Person in connection with the
enforcement of the Mortgage Loan Seller's obligations under Section 3 of
the Mortgage Loan Purchase Agreement, but only to the extent that such
expenses are not reimbursable pursuant to clause (viii) above or otherwise;
(x) to pay for costs and expenses incurred by the Trust Fund pursuant
to Section 3.09(c) out of general collections on the Mortgage Loans and REO
Properties;
(xi) to pay itself, as additional servicing compensation in accordance
with Section 3.11(a), (A) interest and investment income earned in respect
of amounts relating to the Trust Fund held in the Certificate Account as
provided in Section 3.06(b) (but only to the extent of the Net Investment
Earnings with respect to the Certificate Account for any period from any
Distribution Date to the immediately succeeding P&I Advance Date), and (B)
Penalty Charges on Mortgage Loans (other than Specially Serviced Mortgage
Loans) but only to the extent collected from the related Mortgagor and to
the extent that all amounts then due and payable with respect to the
related Mortgage Loan have been paid; and to pay the Special Servicer, as
additional servicing compensation in accordance with the second paragraph
of Section 3.11(b), Penalty Charges on Specially Serviced Mortgage Loans
(but only to the extent collected from the related Mortgagor and to the
extent that all amounts then due and payable with respect to the related
Specially Serviced Mortgage Loan have been paid);
(xii) to pay for the cost of an Independent appraiser or other expert
in real estate matters retained pursuant to Section 3.09(a) or 3.18(e);
(xiii) to recoup any amounts deposited in the Certificate Account in
error;
(xiv) to pay itself, the Special Servicer, the REMIC Administrator,
the Depositor, the Extension Adviser or any of their respective directors,
officers, employees and agents, as the case may be, any amounts payable to
any such Person pursuant to Section 6.03;
<PAGE>
(xv) to pay for (A) the cost of the Opinions of Counsel contemplated
by Sections 3.09(b)(ii), 3.16(a), 3.17(b) and, to the extent payable out of
the Trust Fund, 10.01(f), (B) the cost of any Opinion of Counsel
contemplated by Sections 11.01(a) or (c) in connection with an amendment to
this Agreement requested by the Trustee or the Master Servicer, which
amendment is in furtherance of the rights and interests of
Certificateholders, and (C) the cost of obtaining the REO Extension
contemplated by Section 3.16(a);
(xvi) to pay out of general collections on the Mortgage Loans and REO
Properties any and all federal, state and local taxes imposed on the
Upper-Tier REMIC, the Lower-Tier REMIC or either of their assets or
transactions, together with all incidental costs and expenses, to the
extent that none of the Master Servicer, the Special Servicer, the REMIC
Administrator or the Trustee is not liable therefor pursuant to Section
10.01(g);
(xvii) to reimburse the REMIC Administrator out of general collections
on the Mortgage Loans and REO Properties for expenses incurred by and
reimbursable to it by the Trust Fund pursuant to Section 10.01(c);
(xviii) to pay itself, the Special Servicer, or the Mortgage Loan
Seller, as the case may be, with respect to each Mortgage Loan, if any,
previously purchased by such Person pursuant to this Agreement, all amounts
received thereon subsequent to the date of purchase; and
(xix) to clear and terminate the Certificate Account at the
termination of this Agreement pursuant to Section 9.01.
The Master Servicer shall keep and maintain separate accounting
records, on a loan-by-loan and property-by-property basis when appropriate, for
the purpose of justifying any withdrawal from the Certificate Account.
(b) The Trustee may, from time to time, make withdrawals from the
Lower-Tier Distribution Account for any of the following purposes:
(i) to make deposits of the Lower-Tier Distribution Amount and the
amount of any Prepayment Premiums and Yield Maintenance Charges
distributable pursuant to Section 4.01(d) in the Upper-Tier Distribution
Account;
(ii) to pay the Master Servicer, as additional servicing compensation
in accordance with the second paragraph of Section 3.11(a), interest and
investment income earned in respect of amounts relating to the Trust Fund
held in the Lower-Tier Distribution Account as provided in Section 3.06(b)
(but only to the extent of the Net Investment Earnings with respect to the
Lower-Tier Distribution Account for any period from any Distribution Date
to the immediately succeeding P&I Advance Date);
(iii) to pay itself the Trustee's Fee for each Distribution Date
pursuant to Section 8.05(a);
<PAGE>
(iv) to pay itself or any of its directors, officers, employees and
agents, as the case may be, any amounts payable or reimbursable to any such
Person pursuant to Section 8.05(b);
(v) to pay for (A) the cost of the Opinion of Counsel contemplated by
Section 11.01(c) in connection with any amendment to this Agreement
requested by the Trustee, and (B) the cost of the Opinion of Counsel
contemplated by Section 11.02(a) in connection with any recordation of this
Agreement; and
(vi) to clear and terminate the Lower-Tier Distribution Account at the
termination of this Agreement pursuant to Section 9.01.
(c) The Trustee may make withdrawals from the Upper-Tier Distribution
Account for any of the following purposes:
(i) to make distributions to Certificateholders (other than Holders of
the Class LR Certificates) on each Distribution Date pursuant to Section
4.01 or 9.01, as applicable;
(ii) to pay the Master Servicer, as additional servicing compensation
in accordance with the second paragraph of Section 3.11(a), interest and
investment income earned in respect of amounts held in the Upper-Tier
Distribution Account as provided in Section 3.06(b) (but only to the extent
of the Net Investment Earnings with respect to the Upper-Tier Distribution
Account for any period from any Distribution Date to the immediately
succeeding P&I Advance Date); and
(iii) to clear and terminate the Upper-Tier Distribution Account at
the termination of this Agreement pursuant to Section 9.01.
SECTION 3.06. Investment of Funds in the Certificate Account, the
Distribution Accounts and the REO Account.
-------------------------------------------------------
(a) The Master Servicer may direct any depository institution
maintaining the Certificate Account, the Upper-Tier Distribution Account or the
Lower-Tier Distribution Account (each, for purposes of this Section 3.06, an
"Investment Account") and the Special Servicer may direct any depository
institution maintaining the REO Account (also for purpose of this Section 3.06,
an "Investment Account") to invest, or if it is such depository institution, may
itself invest, the funds held therein in one or more Permitted Investments
bearing interest or sold at a discount, and maturing, unless payable on demand,
(i) no later than the Business Day immediately preceding the next succeeding
date on which such funds are required to be withdrawn from such account pursuant
to this Agreement, if a Person other than the depository institution maintaining
such account is the obligor thereon, and (ii) no later than the date on which
such funds are required to be withdrawn from such account pursuant to this
Agreement, if the depository institution maintaining such account is the obligor
thereon. All such Permitted Investments shall be held to maturity, unless
payable on demand. Any investment of funds in an Investment Account shall be
made in the name of the Trustee (in its capacity as such). The Master Servicer
(in the case of the Certificate Account) or the Special Servicer (in the case of
the REO Account), on behalf of the Trustee, shall maintain continuous possession
of any Permitted Investment of amounts in the Certificate Account or REO Account
that is either (i) a "certificated security", as such term is defined in the
UCC, or (ii) other property in which a secured party may perfect its security
interest by possession under the UCC or any other applicable law. Possession of
any such Permitted Investment by the Master Servicer or the Special Servicer
shall constitute possession by a person designated by the Trustee for purposes
of Section 8-313 of the UCC and possession by the Trustee, as secured party, for
purposes of Section 9-305 of the UCC and any other applicable law. The Trustee
shall have sole control (except with respect to investment direction) over
Permitted Investments of amounts in the Distribution Accounts. In the event
amounts on deposit in an Investment Account are at any time invested in a
Permitted Investment payable on demand, the Master Servicer (in the case of the
Certificate Account), the Special Servicer (in the case of the REO Account) or
the Trustee (in the case of the Distribution Account) shall:
<PAGE>
(i) consistent with any notice required to be given thereunder, demand
that payment thereon be made on the last day such Permitted Investment may
otherwise mature hereunder in an amount equal to the lesser of (1) all
amounts then payable thereunder and (2) the amount required to be withdrawn
on such date; and
(ii) demand payment of all amounts due thereunder promptly upon
determination by the Master Servicer, Special Servicer or Trustee, as the
case may be, that such Permitted Investment would not constitute a
Permitted Investment in respect of funds thereafter on deposit in the
Investment Account.
(b) Interest and investment income realized on funds deposited in each
of the Certificate Account and the Distribution Accounts, to the extent of the
Net Investment Earnings, if any, with respect to such account for each period
from any Distribution Date to the immediately succeeding P&I Advance Date, shall
be for the sole and exclusive benefit of the Master Servicer and shall be
subject to its withdrawal, or withdrawal at its direction, in accordance with
Section 3.05(a), 3.05(b) or 3.05(c), as the case may be. Interest and investment
income realized on funds deposited in the REO Account, to the extent of the Net
Investment Earnings, if any, with respect to such account for each period from
any Distribution Date to the immediately succeeding P&I Advance Date, shall be
for the sole and exclusive benefit of the Special Servicer and shall be subject
to its withdrawal in accordance with Section 3.16(b). In the event that any loss
shall be incurred in respect of any Permitted Investment on deposit in any of
the Certificate Account, the Distribution Accounts or the REO Account, the
Master Servicer (in the case of the Certificate Account and the Distribution
Accounts) or the Special Servicer (in the case of the REO Account) shall deposit
therein, no later than the P&I Advance Date, without right of reimbursement, the
amount of the Net Investment Loss, if any, with respect to such account for the
period from the immediately preceding Distribution Date to such P&I Advance
Date.
<PAGE>
(c) Except as otherwise expressly provided in this Agreement, if any
default occurs in the making of a payment due under any Permitted Investment, or
if a default occurs in any other performance required under any Permitted
Investment, the Trustee may and, subject to Section 8.02, upon the request of
Holders of Certificates entitled to a majority of the Voting Rights allocated to
any Class shall, take such action as may be appropriate to enforce such payment
or performance, including the institution and prosecution of appropriate
proceedings.
SECTION 3.07. Maintenance of Insurance Policies; Errors and Omissions
and Fidelity Coverage.
-------------------------------------------------------
(a) The Master Servicer shall use its reasonable best efforts to cause
the Mortgagor to maintain, to the extent required by the terms of the related
Mortgage Note, or if the Mortgagor does not so maintain, shall itself maintain,
for each Mortgage Loan all Insurance Policy coverage as is required under the
related Mortgage (to the extent the Trustee has an insurable interest and such
Insurance Policy coverage is available at commercially reasonable rates,
consistent with the Servicing Standard); provided that if any Mortgage permits
the holder thereof to dictate to the Mortgagor the Insurance Policy coverage to
be maintained on such Mortgaged Property, the Master Servicer shall impose such
insurance requirements as are consistent with the Servicing Standards. Subject
to Section 3.17(a), the Special Servicer shall maintain for each REO Property no
less Insurance Policy coverage than was previously required of the Mortgagor
under the related Mortgage Loan. All such Insurance Policies shall (i) contain a
"standard" mortgagee clause, with loss payable to the Master Servicer (in the
case of insurance maintained in respect of Mortgage Loans other than REO
Properties), (ii) be in the name of the Special Servicer (in the case of
insurance maintained in respect of REO Properties) on behalf of the Trustee,
(iii) include coverage in an amount not less than the lesser of the full
replacement cost of the REO Property or the outstanding principal balance owing
on the related REO Loan, (iv) include a Replacement Cost Endorsement providing
no deduction for depreciation (unless such endorsement is not permitted under
the related Mortgage Loan documents), and (v) be issued by a Qualified Insurer
authorized under applicable law to issue such Insurance Policies. Any amounts
collected by the Master Servicer or the Special Servicer under any such
Insurance Policies (other than amounts to be applied to the restoration or
repair of the related Mortgaged Property or REO Property or amounts to be
released to the related Mortgagor, in each case in accordance with the Servicing
Standards) shall be deposited in the Certificate Account, subject to withdrawal
pursuant to Section 3.05(a). Any cost incurred by the Master Servicer in
maintaining any such Insurance Policies in respect of Mortgage Loans (other than
REO Properties) (i) if the Mortgagor defaults on its obligation to do so, shall
be advanced by the Master Servicer as a Servicing Advance and will be charged to
the related Mortgagor, and (ii) shall not, for purposes hereof, including,
without limitation, calculating monthly distributions to Certificateholders, be
added to the unpaid principal balance of the related Mortgage Loan,
notwithstanding that the terms of such Mortgage Loan so permit. Any cost
incurred by the Special Servicer in maintaining any such Insurance Policies with
respect to REO Properties shall be an expense of the Trust payable out of the
related REO Account pursuant to Section 3.16(c) or, if the amount on deposit
therein is insufficient therefor, advanced by the Master Servicer as a Servicing
Advance.
<PAGE>
(b)(i) If the Master Servicer or the Special Servicer shall obtain and
maintain a blanket Insurance Policy insuring against fire and hazard losses on
all of the Mortgage Loans or REO Properties, as the case may be, required to be
serviced and administered hereunder, then, to the extent such Insurance Policy
provides protection equivalent to the individual policies otherwise required,
the Master Servicer or the Special Servicer shall conclusively be deemed to have
satisfied its obligation to cause fire and hazard insurance to be maintained on
the related Mortgaged Properties or REO Properties. Such Insurance Policy may
contain a deductible clause, in which case the Master Servicer or the Special
Servicer shall, if there shall not have been maintained on the related Mortgaged
Property or REO Property a fire and hazard Insurance Policy complying with the
requirements of Section 3.07(a), and there shall have been one or more losses
which would have been covered by such Insurance Policy, promptly deposit into
the Certificate Account from its own funds the amount of such loss or losses
that would have been covered under the individual policy but are not covered
under the blanket Insurance Policy because of such deductible clause to the
extent that any such deductible exceeds the deductible limitation that pertained
to the related Mortgage Loan, or in the absence of such deductible limitation,
the deductible limitation which is consistent with the Servicing Standard. In
connection with its activities as administrator and servicer of the Mortgage
Loans, the Master Servicer agrees to prepare and present, on behalf of itself,
the Trustee and Certificateholders, claims under any such blanket Insurance
Policy in a timely fashion in accordance with the terms of such policy.
(ii) If the Master Servicer or the Special Servicer shall cause any
Mortgaged Property or REO Property to be covered by a master single interest
insurance policy naming the Master Servicer or the Special Servicer on behalf of
the Trustee as the loss payee, then to the extent such Insurance Policy provides
protection equivalent to the individual policies otherwise required, the Master
Servicer or the Special Servicer shall conclusively be deemed to have satisfied
its obligation to cause such insurance to be maintained on the related Mortgage
Properties and REO Properties. In the event the Master Servicer or the Special
Servicer shall cause any Mortgaged Property or REO Property to be covered by
such master single interest insurance policy, the incremental costs of such
insurance applicable to such Mortgaged Property or REO Property (i.e., other
than any minimum or standby premium payable for such policy whether or not any
Mortgaged Property or REO Property is covered thereby) shall be paid by the
Master Servicer as a Servicing Advance. Such master single interest policy may
contain a deductible clause, in which case the Master Servicer or the Special
Servicer shall, in the event that there shall not have been maintained on the
related Mortgaged Property or REO Property a policy otherwise complying with the
provisions of Section 3.07(a), and there shall have been one or more losses
which would have been covered by such policy had it been maintained, deposit
into the Certificate Account from its own funds the amount not otherwise payable
under the master single interest policy because of such deductible clause, to
the extent that any such deductible exceeds the deductible limitation that
pertained to the related Mortgage Loan, or, in the absence of any such
deductible limitation, the deductible limitation which is consistent with the
Servicing Standard.
<PAGE>
(c) Each of the Master Servicer and the Special Servicer shall obtain
and maintain at its own expense and keep in full force and effect throughout the
term of this Agreement a blanket fidelity bond and an errors and omissions
Insurance Policy with a Qualified Insurer covering the Master Servicer's and the
Special Servicer's, as applicable, officers and employees and other persons
acting on behalf of the Master Servicer and the Special Servicer in connection
with its activities under this Agreement. The amount of coverage shall be at
least equal to the coverage that would be required by FNMA or FHLMC, whichever
is greater, with respect to the Master Servicer or the Special Servicer if the
Master Servicer or the Special Servicer, as applicable, were servicing and
administering the Mortgage Loans or Specially Serviced Mortgage Loans, as
applicable, for FNMA or FHLMC. Coverage of the Master Servicer or the Special
Servicer under a policy or bond obtained by an Affiliate of the Master Servicer
or the Special Servicer and providing the coverage required by this Section
3.07(c) shall satisfy the requirements of this Section 3.07(c).
(d) During all such times as any Mortgaged Property shall be in a
federally designated special flood hazard area (and such flood insurance has
been made available), the Master Servicer will use its reasonable best efforts
to cause the related Mortgagor (in accordance with applicable law and the terms
of the Mortgage Loan documents) to maintain, and, if the related Mortgagor shall
default in its obligation to so maintain, shall itself maintain to the extent
available at commercially reasonable rates (as determined by the Master Servicer
in accordance with the Servicing Standards), flood insurance in respect thereof,
but only to the extent the related Mortgage Loan permits the mortgagee to
require such coverage and the maintenance of such coverage is consistent with
the Servicing Standards. Such flood insurance shall be in an amount equal to the
lesser of (i) the unpaid principal balance of the related Mortgage Loan, and
(ii) the maximum amount of insurance which is available under the Flood Disaster
Protection Act of 1973, as amended. If the cost of any insurance described above
is not borne by the Mortgagor, the Master Servicer shall promptly make a
Servicing Advance for such costs, subject to Section 3.03(c).
(e) During all such times as any REO Property shall be located in a
federally designated special flood hazard area, the Special Servicer will cause
to be maintained, to the extent available at commercially reasonable rates (as
determined by the Special Servicer in accordance with the Servicing Standards),
a flood insurance policy meeting the requirements of the current guidelines of
the Federal Insurance Administration in an amount representing coverage not less
than the maximum amount of insurance which is available under the Flood Disaster
Protection Act of 1973, as amended. The cost of any such flood insurance with
respect to an REO Property shall be an expense of the Trust payable out of the
related REO Account pursuant to Section 3.16(c) or, if the amount on deposit
therein is insufficient therefor, paid by the Master Servicer as a Servicing
Advance.
SECTION 3.08. Enforcement of Due-On-Sale Clauses; Assumption
Agreements.
----------------------------------------------
(a) As to each Mortgage Loan which contains a provision in the nature
of a "due-on-sale" clause, which by its terms:
<PAGE>
(i) provides that such Mortgage Loan shall (or may at the mortgagee's
option) become due and payable upon the sale or other transfer of an
interest in the related Mortgaged Property; or
(ii) provides that such Mortgage Loan may not be assumed without the
consent of the mortgagee in connection with any such sale or other
transfer,
then, for so long as such Mortgage Loan is included in the Trust Fund, the
Special Servicer, in the case of Specially Serviced Mortgage Loans, and the
Master Servicer, in the case of all other Mortgage Loans, on behalf of the
Trustee as the mortgagee of record, shall exercise (or waive its right to
exercise) any right it may have with respect to such Mortgage Loan (x) to
accelerate the payments thereon, or (y) to withhold its consent to any such sale
or other transfer, in a manner consistent with the Servicing Standards.
(b) As to each Mortgage Loan which contains a provision in the nature
of a "due-on-encumbrance" clause, which by its terms:
(i) provides that such Mortgage Loan shall (or may at the mortgagee's
option) become due and payable upon the creation of any additional lien or
other encumbrance on the related Mortgaged Property; or
(ii) requires the consent of the mortgagee to the creation of any such
additional lien or other encumbrance on the related Mortgaged Property,
then, for so long as such Mortgage Loan is included in the Trust Fund, the
Special Servicer, in the case of Specially Serviced Mortgage Loans, and the
Master Servicer, in the case of all other Mortgage Loans, on behalf of the
Trustee as the mortgagee of record, shall exercise (or waive its right to
exercise) any right it may have with respect to such Mortgage Loan (x) to
accelerate the payments thereon, or (y) to withhold its consent to the creation
of any such additional lien or other encumbrance, in a manner consistent with
the Servicing Standards.
<PAGE>
(c) Nothing in this Section 3.08 shall constitute a waiver of the
Trustee's right, as the mortgagee of record, to receive notice of any assumption
of a Mortgage Loan, any sale or other transfer of the related Mortgaged Property
or the creation of any additional lien or other encumbrance with respect to such
Mortgaged Property.
(d) Except as otherwise permitted by Section 3.20, neither the Master
Servicer nor the Special Servicer shall agree to modify, waive or amend any term
of any Mortgage Loan in connection with the taking of, or the failure to take,
any action pursuant to this Section 3.08.
SECTION 3.09. Realization Upon Defaulted Mortgage Loans.
-----------------------------------------
(a) The Special Servicer shall, subject to subsections (b) through (d)
of this Section 3.09 and Section 3.25(a), exercise reasonable efforts,
consistent with the Servicing Standards, to foreclose upon or otherwise
comparably convert (which may include an REO Acquisition) the ownership of
property securing such Mortgage Loans, as come into and continue in default as
to which no satisfactory arrangements can be made for collection of delinquent
payments, and which are not released from the Trust Fund pursuant to any other
provision hereof. The foregoing is subject to the provision that, in any case in
which a Mortgaged Property shall have suffered damage from an Uninsured Cause,
the Master Servicer shall not be required to make a Servicing Advance and expend
funds toward the restoration of such property unless it shall determine in its
reasonable discretion and in consultation with the Special Servicer that (i)
such restoration will increase the net proceeds of liquidation of such Mortgaged
Property to Certificateholders after reimbursement to itself for such Servicing
Advance, and (ii) such Servicing Advance will be recoverable by the Master
Servicer out of the proceeds of liquidation of such Mortgaged Property, as
contemplated in Section 3.05(a). The Special Servicer shall be responsible for
all other costs and expenses incurred by it in any such proceedings (such costs
and expenses to be advanced by the Master Servicer to the Special Servicer),
provided that, in each case, such cost or expense would not, if incurred,
constitute a Nonrecoverable Servicing Advance. Nothing contained in this Section
3.09 shall be construed so as to require the Master Servicer or Special
Servicer, on behalf of the Trust, to make a bid on any Mortgaged Property at a
foreclosure sale or similar proceeding that is in excess of the fair market
value of such property, as determined by the Master Servicer or Special Servicer
in its reasonable and good faith judgment taking into account the factors
described in Section 3.18(e) and the results of any Appraisal obtained pursuant
to the following sentence, all such bids to be made in a manner consistent with
the Servicing Standards. If and when the Special Servicer or the Master Servicer
deems it necessary and prudent for purposes of establishing the fair market
value of any Mortgaged Property securing a Defaulted Mortgage Loan, whether for
purposes of bidding at foreclosure or otherwise, the Special Servicer or the
Master Servicer, as the case may be, is authorized at the expense of the Trust
Fund to have an Appraisal performed with respect to such property by an
Independent MAI-designated appraiser.
(b) The Special Servicer shall not acquire any personal property
pursuant to this Section 3.09 unless either:
(i) such personal property is incident to real property (within the
meaning of Section 856(e)(1) of the Code) so acquired by the Special
Servicer; or
(ii) the Special Servicer shall have obtained an Opinion of Counsel
(the cost of which may be withdrawn from the Certificate Account pursuant
to Section 3.05(a)) to the effect that the holding of such personal
property by the Trust Fund will not cause the imposition of a tax on the
Lower-Tier REMIC or the Upper-Tier REMIC under the REMIC Provisions or
cause the Lower-Tier REMIC or the Upper-Tier REMIC to fail to qualify as a
REMIC at any time that any Uncertificated Lower-Tier Interest or
Certificate is outstanding.
<PAGE>
(c) Notwithstanding the foregoing provisions of this Section 3.09,
neither the Special Servicer nor the Master Servicer shall, on behalf of the
Trustee, obtain title to a Mortgaged Property in lieu of foreclosure or
otherwise, or take any other action with respect to any Mortgaged Property, if,
as a result of any such action, the Trustee, on behalf of the
Certificateholders, would be considered to hold title to, to be a
"mortgagee-in-possession" of, or to be an "owner" or "operator" of such
Mortgaged Property within the meaning of CERCLA or any comparable law, unless
(as evidenced by an Officer's Certificate to such effect delivered to the
Trustee) the Special Servicer has previously determined in accordance with the
Servicing Standards, based on an Environmental Assessment of such Mortgaged
Property performed by an Independent Person who regularly conducts Environmental
Assessments, that:
(i) the Mortgaged Property is in compliance with applicable
environmental laws and regulations or, if not, that taking such actions as
are necessary to bring the Mortgaged Property in compliance therewith is
reasonably likely to produce a greater recovery on a present value basis
than not taking such actions; and
(ii) there are no circumstances or conditions present at the Mortgaged
Property relating to the use, management or disposal of Hazardous Materials
for which investigation, testing, monitoring, containment, clean-up or
remediation could be required under any applicable environmental laws and
regulations or, if such circumstances or conditions are present for which
any such action could be required, that taking such actions with respect to
such Mortgaged Property is reasonably likely to produce a greater recovery
on a present value basis than not taking such actions.
The cost of any such Environmental Assessment, as well as the cost of
any remedial, corrective or other further action contemplated by clause (i)
and/or clause (ii) of the preceding sentence, may be withdrawn from the
Certificate Account at the direction of the Special Servicer as an expense of
the Trust Fund pursuant to Section 3.05(a)(ix); and if any such Environmental
Assessment so warrants, the Special Servicer shall, at the expense of the Trust
Fund, perform such additional environmental testing as it deems necessary and
prudent to determine whether the conditions described in clauses (i) and (ii) of
the preceding sentence have been satisfied.
(d) If (i) the environmental testing contemplated by subsection (c)
above establishes that either of the conditions set forth in clauses (i) and
(ii) of the first sentence thereof has not been satisfied with respect to any
Mortgaged Property securing a Defaulted Mortgage Loan, and (ii) there has been
no breach of any of the representations and warranties set forth in or required
to be made pursuant to Section 2 of the Mortgage Loan Purchase Agreement for
which the Mortgage Loan Seller could be required to repurchase such Defaulted
Mortgage Loan pursuant to Section 3 of the Mortgage Loan Purchase Agreement,
then the Special Servicer shall take such action as it deems to be in the best
economic interest of the Trust Fund (other than proceeding to acquire title to
the Mortgaged Property) and is hereby authorized at such time as it deems
appropriate to release such Mortgaged Property from the lien of the related
Mortgage.
<PAGE>
(e) The Special Servicer shall provide written reports and a copy of
any Environmental Assessments to the Trustee and the Master Servicer monthly
regarding any actions taken by the Special Servicer with respect to any
Mortgaged Property securing a defaulted Mortgage Loan as to which the
environmental testing contemplated in subsection (c) above has revealed that
either of the conditions set forth in clauses (i) and (ii) of the first sentence
thereof has not been satisfied, in each case until the earliest to occur of
satisfaction of both such conditions, repurchase of the related Mortgage Loan by
the Mortgage Loan Seller and release of the lien of the related Mortgage on such
Mortgaged Property. The Trustee shall forward all such reports to the
Certificateholders and each Rating Agency promptly following the receipt
thereof. In addition, the Master Servicer will deliver to the Class F, Class G,
Class H and Class UR Certificateholders a copy of any such written reports and
any Environmental Assessments within 15 days after receipt of such written
reports and Environmental Assessments from the Special Servicer.
(f) The Special Servicer shall report to the Internal Revenue Service
and the related Mortgagor, in the manner required by applicable law, the
information required to be reported regarding any Mortgaged Property which is
abandoned or foreclosed and the Special Servicer shall report, via Form 1099C,
all forgiveness of indebtedness. The Special Servicer shall deliver a copy of
any such report to the Trustee and the Master Servicer.
(g) The Special Servicer shall have the right to determine, in
accordance with the Servicing Standards, the advisability of the maintenance of
an action to obtain a deficiency judgment if the state in which the Mortgaged
Property is located and the terms of the Mortgage Loan permit such an action.
(h) The Special Servicer shall maintain accurate records, prepared by
a Servicing Officer, of each Final Recovery Determination in respect of a
Defaulted Mortgage Loan or REO Property and the basis thereof. Each Final
Recovery Determination shall be evidenced by an Officer's Certificate delivered
to the Trustee and the Master Servicer no later than the next succeeding P&I
Advance Determination Date.
SECTION 3.10. Trustee to Cooperate; Release of Mortgage Files.
-----------------------------------------------
(a) Upon the payment in full of any Mortgage Loan, or the receipt by
the Master Servicer of a notification that payment in full shall be escrowed in
a manner customary for such purposes, the Master Servicer will immediately
notify the Trustee and request delivery of the related Mortgage File. Any such
notice and request shall be in the form of a Request for Release signed by a
Servicing Officer and shall include a statement to the effect that all amounts
received or to be received in connection with such payment which are required to
be deposited in the Certificate Account pursuant to Section 3.04(a) have been or
will be so deposited. Within seven Business Days (or within such shorter period
as release can reasonably be accomplished if the Master Servicer notifies the
Trustee of an exigency) of receipt of such notice and request, the Trustee shall
release, or cause any related Custodian to release, the related Mortgage File to
the Master Servicer. No expenses incurred in connection with any instrument of
satisfaction or deed of reconveyance shall be chargeable to the Certificate
Account.
<PAGE>
(b) From time to time as is appropriate for servicing or foreclosure
of any Mortgage Loan, the Master Servicer or the Special Servicer shall deliver
the Trustee a Request for Release signed by a Servicing Officer. Upon receipt of
the foregoing, the Trustee shall deliver or cause the related Custodian to
deliver, the Mortgage File or any document therein to the Master Servicer or the
Special Servicer, as the case may be. Upon return of such Mortgage File or such
document to the Trustee or the related Custodian, or the delivery to the Trustee
of a certificate of a Servicing Officer of the Master Servicer or the Special
Servicer, as the case may be, stating that such Mortgage Loan was liquidated and
that all amounts received or to be received in connection with such liquidation
which are required to be deposited into the Certificate Account pursuant to
Section 3.04(a) have been or will be so deposited, or that such Mortgage Loan
has become an REO Property, a copy of the Request for Release shall be released
by the Trustee to the Master Servicer or the Special Servicer, as the case may
be, with the original being released upon termination of the Trust.
(c) Within seven Business Days (or within such shorter period as
delivery can reasonably be accomplished if the Special Servicer notifies the
Trustee of an exigency) of receipt thereof, the Trustee shall execute and
deliver to the Special Servicer any court pleadings, requests for trustee's sale
or other documents necessary to the foreclosure or trustee's sale in respect of
a Mortgaged Property or to any legal action brought to obtain judgment against
any Mortgagor on the Mortgage Note or Mortgage or to obtain a deficiency
judgment, or to enforce any other remedies or rights provided by the Mortgage
Note or Mortgage or otherwise available at law or in equity. The Special
Servicer shall be responsible for the preparation of all such documents and
pleadings. When submitted to the Trustee for signature, such documents or
pleadings shall be accompanied by a certificate of a Servicing Officer
requesting that such pleadings or documents be executed by the Trustee and
certifying as to the reason such documents or pleadings are required and that
the execution and delivery thereof by the Trustee will not invalidate or
otherwise affect the lien of the Mortgage, except for the termination of such a
lien upon completion of the foreclosure or trustee's sale.
SECTION 3.11. Servicing Compensation.
----------------------
(a) As compensation for its activities hereunder, the Master Servicer
shall be entitled to receive the Master Servicing Fee with respect to each
Mortgage Loan and REO Loan. As to each Mortgage Loan and REO Loan, the Master
Servicing Fee shall accrue from time to time at the Master Servicing Fee Rate
(in accordance with the same terms of the related Mortgage Note as are
applicable to the accrual of interest at the Mortgage Rate) and shall be
computed on the basis of the Stated Principal Balance of such Mortgage Loan and
for the same period respecting which any related interest payment due on such
Mortgage Loan or deemed to be due on such REO Loan is computed. The Master
Servicing Fee with respect to any Mortgage Loan or REO Loan shall cease to
accrue if a Liquidation Event occurs in respect thereof. The Master Servicing
Fee shall be payable monthly, on a loan-by-loan basis, from payments of interest
on each Mortgage Loan and REO Revenues allocable as interest on each REO Loan.
The Master Servicer shall be entitled to recover unpaid Master Servicing Fees in
respect of any Mortgage Loan or REO Loan out of that portion of related
payments, Insurance Proceeds, Liquidation Proceeds and REO Revenues (in the case
of an REO Loan) allocable as recoveries of interest, to the extent permitted by
Section 3.05(a). The right to receive the Master Servicing Fee may not be
transferred in whole or in part except in connection with the transfer of all of
the Master Servicer's responsibilities and obligations under this Agreement.
<PAGE>
Additional servicing compensation in the form of assumption and
modification fees (other than those received on Specially Serviced Mortgage
Loans), not to exceed 1.0% of the unpaid principal balance of the related
Mortgage Loan, and only to the extent that all amounts then due and payable with
respect to the related Mortgage Loan have been paid, and charges for beneficiary
statements or demands and amounts collected for checks returned for insufficient
funds, in each case only to the extent actually paid by the related Mortgagor,
shall be retained by the Master Servicer and shall not be required to be
deposited in the Certificate Account pursuant to Section 3.04(a). The Master
Servicer shall also be entitled to additional servicing compensation in the form
of: (i) Penalty Charges received on the Mortgage Loans (other than Specially
Serviced Mortgage Loans), but only to the extent actually paid by the related
Mortgagor and to the extent that all amounts then due and payable with respect
to the related Mortgage Loan have been paid; (ii) interest or other income
earned on deposits relating to the Trust Fund in the Certificate Account and the
Distribution Accounts in accordance with Section 3.06(b) (but only to the extent
of the Net Investment Earnings, if any, with respect to each such account for
each period from any Distribution Date to the immediately succeeding P&I Advance
Date); and (iii) interest earned on deposits in the Servicing Account which are
not required by applicable law or the related Mortgage Loan to be paid to the
Mortgagor. The Master Servicer shall be required to pay out of its own funds all
expenses incurred by it in connection with its servicing activities hereunder
(including, without limitation, payment of any amounts due and owing to any of
its Sub-Servicers and the premiums for any blanket Insurance Policy insuring
against hazard losses pursuant to Section 3.07), if and to the extent such
expenses are not payable directly out of the Certificate Account, and the Master
Servicer shall not be entitled to reimbursement therefor except as expressly
provided in this Agreement.
(b) As compensation for its activities hereunder, the Special Servicer
shall be entitled to receive the Special Servicing Fee with respect to each
Specially Serviced Mortgage Loan and REO Loan. As to each Specially Serviced
Mortgage Loan and REO Loan, the Special Servicing Fee shall accrue from time to
time at the applicable Special Servicing Fee Rate (in accordance with the same
terms of the related Mortgage Note as are applicable to the accrual of interest
at the Mortgage Rate) and shall be computed on the basis of the Stated Principal
Balance of such Specially Serviced Mortgage Loan and for the same period
respecting which any related interest payment due on such Specially Serviced
Mortgage Loan or deemed to be due on such REO Loan is computed. The Special
Servicing Fee with respect to any Specially Serviced Mortgage Loan or REO Loan
shall cease to accrue if a Liquidation Event occurs in respect thereof. The
Special Servicing Fee shall be payable monthly, on a loan-by-loan basis, from
payments of interest on each Specially Serviced Mortgage Loan and REO Revenues
allocable as interest on each REO Loan. The Special Servicer shall be entitled
to recover unpaid Special Servicing Fees in respect of any Mortgage Loan or REO
Loan out of that portion of related Insurance Proceeds or Liquidation Proceeds
allocable as recoveries of interest, to the extent permitted by Section 3.05(a).
The right to receive the Special Servicing Fee may not be transferred in whole
or in part except in connection with the transfer of all of the Special
Servicer's responsibilities and obligations under this Agreement.
<PAGE>
Additional servicing compensation in the form of assumption and
modification fees received on Specially Serviced Mortgage Loans, not to exceed
1.0% of the unpaid principal balance of the related Specially Serviced Mortgage
Loan and only to the extent actually collected from the related Mortgagor and to
the extent that all amounts then due and payable with respect to the related
Mortgage Loan have been paid, shall be promptly paid to the Special Servicer by
the Master Servicer and shall not be required to be deposited in the Certificate
Account pursuant to Section 3.04(a). The Special Servicer shall also be entitled
to additional servicing compensation in the form of: (i) (x) a fee (a
"Modification Fee") equal to (A) 0.25% of the Stated Principal Balance of any
Specially Serviced Mortgage Loan whose maturity date is extended for a period of
one year or less, or (B) 0.50% of the Stated Principal Balance of any Specially
Serviced Mortgage Loan whose maturity date is extended for a period of more than
one year, in either case computed on the basis of the Stated Principal Balance
of such Specially Serviced Mortgage Loan on the date of such extension; (y) a
fee (a "Loan Disposition Fee") equal to (A) 1.00% of the Liquidation Proceeds
received with respect to any Mortgage Loan that is not, at the time of its
disposition, an REO Loan, if the Stated Principal Balance of such Mortgage Loan
is $5,000,000 or less, or (B) 0.50% of the Liquidation Proceeds received with
respect to any Mortgage Loan that is not, at the time of its disposition, an REO
Loan, if the Stated Principal Balance of such Mortgage Loan exceeds $5,000,000;
(z) a fee (an "REO Disposition Fee") equal to 0.75% of the Liquidation Proceeds
received with respect to any REO Loan; provided, however, that in no event shall
the aggregate amount of Modification Fees, Loan Disposition Fees and REO
Disposition Fees payable to the Special Servicer as additional compensation with
respect to any Mortgage Loan or REO Loan exceed 1.25% of the Stated Principal
Balance of such Mortgage Loan or REO Loan; (ii) Penalty Charges on Specially
Serviced Mortgage Loans (but only to the extent actually collected from the
related Mortgagor and to the extent that all amounts then due and payable with
respect to the related Mortgage Loan have been paid); and (iii) interest or
other income earned on deposits in the REO Account, if established, in
accordance with Section 3.06(b) (but only to the extent of the Net Investment
Earnings, if any, with respect to such account for each period from any
Distribution Date to the immediately succeeding P&I Advance Date). The Special
Servicer shall be required to pay out of its own funds all expenses incurred by
it in connection with its servicing activities hereunder (including, without
limitation, payment of any amounts, other than management fees in respect of REO
Properties, due and owing to any of its Sub-Servicers and the premiums for any
blanket Insurance Policy obtained by it insuring against hazard losses pursuant
to Section 3.07), if and to the extent such expenses are not payable directly
out of the Certificate Account or the REO Account, and the Special Servicer
shall not be entitled to reimbursement therefor except as expressly provided in
this Agreement.
<PAGE>
SECTION 3.12. Inspections; Collection of Financial Statements.
-----------------------------------------------
(a) The Master Servicer shall perform (at its own expense), or shall
cause each Sub-Servicer to perform (at its own expense), a physical inspection
of each Mortgaged Property at such times and in such manner as are consistent
with the Servicing Standards, but in any event shall inspect each Mortgaged
Property securing a Mortgage Note with a Stated Principal Balance of (A)
$2,000,000 or more at least once every 12 months and (B) less than $2,000,000 at
least once every 24 months, in each case commencing in the calendar year 1998;
provided, however, that if any scheduled payment becomes more than 60 days
delinquent on the related Mortgage Loan, the Special Servicer shall inspect the
related Mortgaged Property as soon as practicable thereafter. The cost of such
inspection by the Special Servicer shall be an expense of the Trust Fund. The
Special Servicer, the Master Servicer or each Sub-Servicer, as applicable, shall
prepare a written report of each such inspection detailing the condition of the
Mortgaged Property and specifying the existence of (i) any vacancy in the
Mortgaged Property that the preparer of such report deems material, (ii) any
sale, transfer or abandonment of the Mortgaged Property, (iii) any adverse
change in the condition or value of the Mortgaged Property that the preparer of
such report deems material, or (iv) any waste committed on the Mortgaged
Property. The Special Servicer, the Master Servicer or each Sub-Servicer, as
applicable, shall deliver to the Trustee and each Rating Agency and the Special
Servicer, Master Servicer or applicable Sub-Servicer, as the case may be, and
each Holder of a Class F, Class G, Class H and Class UR Certificate, a copy of
each such written report within 60 days of its preparation.
(b) The Special Servicer or Master Servicer, as applicable, shall make
reasonable efforts to collect promptly from each Mortgagor annual operating
statements and rent rolls of the related Mortgaged Property, and financial
statements of such Mortgagor, if delivery of such items is required pursuant to
the terms of the related Mortgage. The Special Servicer or Master Servicer, as
applicable, shall promptly: (i) review all such items as may be collected; (ii)
prepare written reports based on such reviews identifying the Debt Service
Coverage Ratios for the related Mortgage Loans; and (iii) deliver copies of the
collected items, and of the written reports prepared in respect thereof, to the
Trustee, the Rating Agencies and each Holder of a Class F, Class G, Class H and
Class UR Certificate, via diskette or other electronic transmission and by
written report to follow, in each case within 30 days of its receipt or
preparation, as applicable.
SECTION 3.13. Annual Statement as to Compliance.
---------------------------------
Each of the Master Servicer and the Special Servicer will deliver to
the Trustee, with a copy to the Depositor, on or before April 30th of each year,
beginning April 30, 1997, an Officer's Certificate stating, as to each signer
thereof, that (i) a review of the activities of the Master Servicer or the
Special Servicer, as the case may be, during the preceding calendar year and of
its performance under this Agreement has been made under such officer's
supervision, (ii) to the best of such officer's knowledge, based on such review,
the Master Servicer or the Special Servicer, as the case may be, has fulfilled
in all material respects its obligations under this Agreement throughout such
year, or, if there has been a default in the fulfillment of any such obligation,
specifying each such default known to such officer and the nature and status
thereof, and (iii) the Master Servicer or the Special Servicer, as the case may
be, has received no notice regarding qualification, or challenging the status,
of either the Lower-Tier REMIC or the Upper-Tier REMIC as a REMIC from the
Internal Revenue Service or any other governmental agency or body or, if it has
received any such notice, specifying the details thereof. A copy of such
Officer's Certificate may be obtained by Certificateholders upon written request
to the Trustee pursuant to Section 8.12 hereof.
<PAGE>
SECTION 3.14. Reports by Independent Public Accountants.
-----------------------------------------
The Master Servicer at its expense shall cause a nationally recognized
firm of independent certified public accountants to furnish to the Master
Servicer, the Trustee and each Rating Agency, on or before April 30 of each
year, commencing with April 30, 1997, a report stating that (i) it has obtained
from the Master Servicer a letter of representation regarding certain matters
from the management of the Master Servicer which includes an assertion that the
Master Servicer has complied with certain minimum mortgage loan servicing
standards (to the extent applicable to commercial and multifamily mortgage
loans), identified in the Uniform Single Attestation Program for Mortgage
Bankers established by the Mortgage Bankers Association of America, with respect
to the Master Servicer's servicing of commercial and multifamily mortgage loans
during the most recently completed calendar year and (ii) on the basis of an
examination conducted by such firm in accordance with standards established by
the American Institute of Certified Public Accountants, such representation is
fairly stated in all material respects, subject to such exceptions and other
qualifications that, in the opinion of such firm, such standards require it to
report. In rendering its report such firm may rely, as to the matters relating
to the direct servicing of commercial and multifamily mortgage loans by
Sub-Servicers, upon comparable reports of firms of independent certified public
accountants rendered on the basis of examinations conducted in accordance with
the same standards (rendered within one year of such statement) with respect to
those Sub-Servicers. On or before April 30 of each year, commencing with April
30, 1997, the Master Servicer shall furnish a copy of such report to the Trustee
and each Rating Agency.
SECTION 3.15. Access to Certain Information.
-----------------------------
Each of the Master Servicer and the Special Servicer shall provide or
cause to be provided to any Certificateholder or Certificate Owner that is, or
is affiliated with, a federally insured financial institution, the Trustee, the
Depositor, each Rating Agency, to the Master Servicer, or to the Special
Servicer, as applicable, and to the OTS, the FDIC, the Federal Reserve Board and
the supervisory agents and examiners of such boards and such corporations, and
any other federal or state banking or insurance regulatory authority that may
exercise authority over any Certificateholder, and each Holder of a Class F,
Class G, Class H and Class UR Certificate, access to any documentation regarding
the Mortgage Loans and the Trust Fund within its control which may be required
by this Agreement or by applicable law. Such access shall be afforded without
charge but only upon reasonable prior written request and during normal business
hours at the offices of the Master Servicer or the Special Servicer, as the case
may be, designated by it; provided, however, that the Class F, Class G, Class H
and Class UR Certificateholders shall be required to pay a reasonable and
customary fee for access to the aforementioned information, shall pay their own
photocopying costs and execute a reasonable and customary confidentiality
agreement with respect to such information. Nothing in this Section 3.15 shall
detract from the obligation of the Master Servicer and the Special Servicer to
observe any applicable law prohibiting disclosure of information with respect to
the Mortgagors, and the failure of the Master Servicer or the Special Servicer
to provide access as provided in this Section 3.15 as a result of such
obligation shall not constitute a breach of this Section 3.15. The Master
Servicer and the Special Servicer may each deny any of the foregoing persons
access to confidential information or any intellectual property which the Master
Servicer or the Special Servicer is restricted by license or contract from
disclosing. Notwithstanding the foregoing, the Master Servicer and the Special
Servicer shall maintain separate from such confidential information and
intellectual property, all documentation regarding the Mortgage Loans that is
not confidential.
<PAGE>
SECTION 3.16. Title to REO Property; REO Account.
----------------------------------
(a) If title to any REO Property is acquired, the deed or certificate
of sale shall be issued to the Trustee on behalf of the Certificateholders. The
Special Servicer, on behalf of the Trust Fund, shall sell any REO Property
within two years after the Trust Fund acquires ownership of such REO Property
for purposes of Section 860G(a)(8) of the Code, unless the Special Servicer
either (i) is granted an extension of time (an "REO Extension") by the Internal
Revenue Service to sell such REO Property or (ii) obtains for the Trustee and
the REMIC Administrator an Opinion of Counsel, addressed to the Trustee and the
REMIC Administrator, to the effect that the holding by the Trust Fund of such
REO Property subsequent to the second anniversary of such acquisition will not
result in the imposition of taxes on "prohibited transactions" of the Trust Fund
or the Lower-Tier REMIC or Upper-Tier REMIC as defined in Section 860F of the
Code or cause either the Lower-Tier REMIC or the Upper-Tier REMIC to fail to
qualify as a REMIC at any time that any Uncertificated Lower-Tier Interests or
Certificates are outstanding. If the Special Servicer is granted the REO
Extension contemplated by clause (i) of the immediately preceding sentence or
obtains the Opinion of Counsel contemplated by clause (ii) of the immediately
preceding sentence, the Special Servicer shall sell such REO Property within
such period longer than two years as is permitted by such REO Extension or such
Opinion of Counsel, as the case may be. Any expense incurred by the Special
Servicer in connection with its being granted the REO Extension contemplated by
clause (i) of the second preceding sentence or its obtaining the Opinion of
Counsel contemplated by clause (ii) of the second preceding sentence, shall be
an expense of the Trust Fund payable out of the Certificate Account pursuant to
Section 3.05(a).
(b) The Special Servicer shall segregate and hold all funds collected
and received in connection with any REO Property separate and apart from its own
funds and general assets. If an REO Acquisition shall occur, the Special
Servicer shall establish and maintain one or more accounts (collectively, the
"REO Account"), held on behalf of the Trustee in trust for the benefit of the
Certificateholders, for the retention of revenues and other proceeds derived
from each REO Property. The REO Account shall be an Eligible Account. The
Special Servicer shall deposit, or cause to be deposited, in the REO Account,
within one Business Day after receipt, all REO Revenues, Insurance Proceeds and
Liquidation Proceeds received in respect of an REO Property. Funds in the REO
Account may be invested in Permitted Investments in accordance with Section
3.06. The Special Servicer shall be entitled to make withdrawals from the REO
Account to pay itself, as additional servicing compensation in accordance with
the second paragraph of Section 3.11(b), interest and investment income earned
in respect of amounts held in the REO Account as provided in Section 3.06(b)
(but only to the extent of the Net Investment Earnings with respect to the REO
Account for any period from any Distribution Date to the immediately succeeding
P&I Advance Date). The Special Servicer shall give notice to the Trustee and the
Master Servicer of the location of the REO Account when first established and of
the new location of the REO Account prior to any change thereof.
<PAGE>
(c) The Special Servicer shall withdraw from the REO Account
funds necessary for the proper operation, management, maintenance and
disposition of any REO Property, but only to the extent of amounts on deposit in
the REO Account relating to such REO Property. On each Determination Date, the
Special Servicer shall withdraw from the REO Account and deposit into the
Certificate Account the aggregate of all amounts received in respect of each REO
Property during the most recently ended Due Period, net of any withdrawals made
out of such amounts pursuant to the preceding sentence; provided, however, that
the Special Servicer may retain in such REO Account, in accordance with the
Servicing Standards, such portion of such balance as may be necessary to
maintain a reasonable reserve for repairs, replacements and other related
expenses for the related REO Property.
(d) The Special Servicer shall keep and maintain separate records, on
a property-by-property basis, for the purpose of accounting for all deposits to,
and withdrawals from, the REO Account pursuant to Section 3.16(b) or (c).
SECTION 3.17. Management of REO Property.
--------------------------
(a) If title to any REO Property is acquired, the Special Servicer
shall manage, conserve, protect and operate such REO Property for the benefit of
the Certificateholders solely for the purpose of its prompt disposition and sale
in a manner that does not cause such REO Property to fail to qualify as
"foreclosure property" within the meaning of Section 860G(a)(8) of the Code or
result in the receipt by the Trust Fund of any "income from non-permitted
assets" within the meaning of Section 860F(a)(2)(B) of the Code. Subject to the
foregoing, however, the Special Servicer shall have full power and authority to
do any and all things in connection therewith as are in the best interests of
and for the benefit of the Certificateholders (as determined by the Special
Servicer in its good faith and reasonable judgment) and, consistent therewith,
shall withdraw from the REO Account, to the extent of amounts on deposit therein
with respect to such REO Property, funds necessary for the proper operation,
management and maintenance of such REO Property, including, without limitation:
(i) all insurance premiums due and payable in respect of such REO
Property;
(ii) all real estate taxes and assessments in respect of such REO
Property that may result in the imposition of a lien thereon;
(iii) any ground rents in respect of such REO Property; and
<PAGE>
(iv) all costs and expenses necessary to maintain such REO Property.
To the extent that amounts on deposit in the REO Account in respect of
any REO Property are insufficient for the purposes set forth in clauses (i) -
(iv) above with respect to such REO Property, the Master Servicer shall advance
from its own funds such amount as is necessary for such purposes unless (as
evidenced by an Officer's Certificate delivered to the Trustee), the Master
Servicer would not make such advances if the Master Servicer owned such REO
Property or if such advances would, if made, constitute Nonrecoverable Servicing
Advances. The Special Servicer shall give the Master Servicer not less than five
Business Days' notice before the date on which the Master Servicer is requested
to make any Servicing Advance with respect to an REO Property; provided,
however, that only two Business Days' notice shall be required in respect of
Servicing Advances required to be made on an urgent or emergency basis (which
may include, without limitation, Servicing Advances required to make tax or
insurance payments).
(b) Without limiting the generality of the foregoing, the Special
Servicer shall not:
(i) permit the Trust Fund to enter into, renew or extend any New Lease
with respect to any REO Property, if the New Lease by its terms will give
rise to any income that does not constitute Rents from Real Property;
(ii) permit any amount to be received or accrued under any New Lease
other than amounts that will constitute Rents from Real Property;
(iii) authorize or permit any construction on any REO Property, other
than the completion of a building or other improvement thereon, and then
only if more than ten percent of the construction of such building or other
improvement was completed before default on the related Mortgage Loan
became imminent, all within the meaning of Section 856(e)(4)(B) of the
Code; or
(iv) Directly Operate, or allow any other Person to Directly Operate,
any REO Property on any date more than 90 days after its Acquisition Date;
unless, in any such case, the Special Servicer has obtained an Opinion of
Counsel (the cost of which may be withdrawn from the Certificate Account
pursuant to Section 3.05(a)) to the effect that such action will not cause such
REO Property to fail to qualify as "foreclosure property" within the meaning of
Section 860G(a)(8) of the Code at any time that it is held by the Trust Fund, in
which case the Special Servicer may take such actions as are specified in such
Opinion of Counsel. Except as limited above and by Section 3.17(c), the Special
Servicer shall be permitted to cause the Trust Fund to earn "net income from
foreclosure property," subject to the standard of Section 4.01(a).
(c) The Special Servicer shall contract with any Independent
Contractor for the operation and management of any REO Property within 90 days
of the Acquisition Date thereof, provided that:
<PAGE>
(i) the terms and conditions of any such contract may not be
inconsistent herewith and shall reflect an agreement reached at arm's
length;
(ii) the fees of such Independent Contractor (which shall be an
expense of the Trust Fund) shall be reasonable and customary in light of
the nature and locality of the Mortgaged Property;
(iii) any such contract shall require, or shall be administered to
require, that the Independent Contractor (A) pay all costs and expenses
incurred in connection with the operation and management of such REO
Property, including, without limitation, those listed in subsection (a)
hereof, and (B) remit all related revenues collected (net of its fees and
such costs and expenses) to the Special Servicer upon receipt;
(iv) none of the provisions of this Section 3.17(c) relating to any
such contract or to actions taken through any such Independent Contractor
shall be deemed to relieve the Special Servicer of any of its duties and
obligations hereunder with respect to the operation and management of any
such REO Property; and
(v) the Special Servicer shall be obligated with respect thereto to
the same extent as if it alone were performing all duties and obligations
in connection with the operation and management of such REO Property.
The Special Servicer shall be entitled to enter into any agreement
with any Independent Contractor performing services for it related to its duties
and obligations hereunder for indemnification of the Special Servicer by such
Independent Contractor, and nothing in this Agreement shall be deemed to limit
or modify such indemnification.
SECTION 3.18. Sale of Defaulted Mortgage Loans and REO Properties.
---------------------------------------------------
(a) Each of the Master Servicer and the Special Servicer may sell or
purchase, or permit the sale or purchase of, a Mortgage Loan or REO Property
only on the terms and subject to the conditions set forth in this Section 3.18
or as otherwise expressly provided in or contemplated by Section 2.03(b) and, in
the case of the Master Servicer, 9.01.
(b) In the event that any Mortgage Loan becomes a Defaulted Mortgage
Loan and the Special Servicer has determined in good faith that such Defaulted
Mortgage Loan will become subject to foreclosure proceedings, the Special
Servicer shall promptly so notify in writing the Trustee and the Master
Servicer. The Special Servicer or the Master Servicer may at its option purchase
such Defaulted Mortgage Loan from the Trust Fund, at a price equal to the
Purchase Price. The Purchase Price for any Defaulted Mortgage Loan purchased
hereunder shall be deposited into the Certificate Account, and the Trustee, upon
receipt of an Officer's Certificate from the Special Servicer to the effect that
such deposit has been made, shall release or cause to be released to the Special
Servicer or the Master Servicer, as the case may be, the related Mortgage File,
and shall execute and deliver such instruments of transfer or assignment, in
each case without recourse, as shall be necessary to vest in the Special
Servicer or the Master Servicer, as the case may be, such Defaulted Mortgage
Loan.
<PAGE>
(c) The Special Servicer may offer to sell any Defaulted Mortgage Loan
not otherwise purchased by the Special Servicer or the Master Servicer pursuant
to subsection (b) above, if and when the Special Servicer determines, consistent
with the Servicing Standards, that such a sale would produce a greater recovery
on a present value basis than would liquidation of the related Mortgaged
Property. Such offering shall be made in a commercially reasonable manner for a
period of not less than 10 days or more than 90 days. The Special Servicer shall
accept the highest cash bid received from any Person for such Defaulted Mortgage
Loan in an amount at least equal to the Purchase Price therefor; provided that
in the absence of any such bid, the Special Servicer shall accept the highest
cash bid received from any Person that is determined by the Special Servicer to
be a fair price for such Defaulted Mortgage Loan. In the absence of any bid
determined as provided below to be fair, the Special Servicer shall proceed with
respect to such Defaulted Mortgage Loan in accordance with Section 3.09.
The Special Servicer shall use reasonable efforts to solicit bids for
each REO Property in such manner as will be reasonably likely to realize a fair
price within the time period provided for by Section 3.16(a). The Special
Servicer shall accept the first (and, if multiple bids are contemporaneously
received, highest) cash bid received from any Person for such REO Property in an
amount at least equal to the Purchase Price therefor; provided that in the
absence of any such bid, the Special Servicer shall accept the highest cash bid
received from any Person that is determined by the Special Servicer to be a fair
price for such REO Property. If the Special Servicer reasonably believes that it
will be unable to realize a fair price for any REO Property within the time
constraints imposed by Section 3.16(a), then the Special Servicer shall dispose
of such REO Property upon such terms and conditions as the Special Servicer
shall deem necessary and desirable to maximize the recovery thereon under the
circumstances and, in connection therewith, shall accept the highest outstanding
cash bid, regardless of from whom received. Notwithstanding the foregoing, the
Special Servicer shall not be obligated by the foregoing or otherwise to accept
the highest bid if the Special Servicer determines, in accordance with the
Servicing Standards, that rejection of such bid would be in the best interests
of the Certificateholders. In the event that the Special Servicer determines
with respect to any REO Property that the offers being made with respect thereto
are not in the best interests of the Certificateholders and that the end of the
two-year period referred to in Section 3.16(a) with respect to such REO Property
is approaching, the Special Servicer shall seek an extension of such two-year
period in the manner described in Section 3.16(a); provided, however, that the
Special Servicer shall use its best efforts, consistent with the Servicing
Standards, to sell any REO Property prior to two years prior to the Rated Final
Distribution Date.
The Special Servicer shall give the Trustee and the Master Servicer
not less than three Business Days' prior written notice of its intention to sell
any Defaulted Mortgage Loan or REO Property. No Interested Person shall be
obligated to submit a bid to purchase any Defaulted Mortgage Loan or REO
Property, and notwithstanding anything to the contrary herein, neither the
Trustee, in its individual capacity, nor any of its Affiliates may bid for or
purchase any Defaulted Mortgage Loan or any REO Property pursuant hereto.
<PAGE>
(d) Whether any cash bid constitutes a fair price for any Defaulted
Mortgage Loan or REO Property, as the case may be, for purposes of Section
3.18(b), shall be determined by the Special Servicer, if the highest bidder is a
Person other than an Interested Person, and by the Trustee, if the highest
bidder is an Interested Person. In determining whether any bid received from an
Interested Person represents a fair price for any Defaulted Mortgage Loan or any
REO Property, the Trustee may conclusively rely on the opinion of an Independent
MAI-designated appraiser or other expert in real estate matters retained by the
Special Servicer at the expense of the Trust Fund. In determining whether any
bid constitutes a fair price for any Defaulted Mortgage Loan or any REO
Property, such appraiser or other expert in real estate matters shall be
instructed to take into account, as applicable, among other factors, the period
and amount of any delinquency on the affected Defaulted Mortgage Loan, the
occupancy level and physical condition of the Mortgaged Property or REO
Property, the state of the local economy and the obligation to dispose of any
REO Property within the time period specified in Section 3.16(a). The Purchase
Price for any Defaulted Mortgage Loan or REO Property shall in all cases be
deemed a fair price.
(e) Subject to subsections (a) through (d) above, the Special Servicer
shall act on behalf of the Trustee in negotiating and taking any other action
necessary or appropriate in connection with the sale of any Defaulted Mortgage
Loan or REO Property, and the collection of all amounts payable in connection
therewith. Any sale of a Defaulted Mortgage Loan or any REO Property shall be
final and without recourse to the Trustee or the Trust Fund, and if such sale is
consummated in accordance with the terms of this Agreement, neither the Special
Servicer nor the Trustee shall have any liability to any Certificateholder with
respect to the purchase price therefor accepted by the Special Servicer or the
Trustee.
SECTION 3.19. Additional Obligations of the Master Servicer.
---------------------------------------------
[Reserved]
<PAGE>
SECTION 3.20. Modifications, Waivers, Amendments and Consents.
-----------------------------------------------
(a) Except as set forth in Section 3.08(a) and (b) and this Section
3.20, the Master Servicer shall not agree to any modification, waiver or
amendment of a Mortgage Loan, provided that the Master Servicer may agree to
extend the maturity date of a Mortgage Loan for twelve months or less from or
after the original maturity date of such Mortgage Loan, if: (i) the Master
Servicer determines that such extension is in the best interests of the Trust
Fund; (ii) a payment default has occurred at maturity of such Mortgage Loan or,
in the judgment of the Master Servicer, as evidenced by an Officers'
Certificate, is imminent at maturity of the Mortgage Loan and will not be cured
within 60 days from the maturity date; (iii) the Master Servicer has received
from the related Mortgagor operating statements for the related Mortgaged
Property for the most recent full calendar year for which operating statements
are available and for the current year to date and, based on such operating
statements, the Debt Service Coverage Ratio of such Mortgage Loan has been and,
in the reasonable judgment of the Master Servicer, is expected to continue to be
during the ensuing twelve months greater than or equal to 1.25x (or 1.15x for
LIHTC Mortgage Loans); (iv) except as contemplated in clause (ii) above, no
payment (including Escrow Payments) due from the Mortgagor on such Mortgage Loan
has been 30 or more days delinquent within the past twelve months; (v) the
Master Servicer has performed an inspection of the related Mortgaged Property
within the last three months or performs a new inspection of the related
Mortgaged Property prior to the contemplated extension; (vi) the Master Servicer
has received from the related Mortgagor the last annual rent roll for the
related Mortgaged Property and a current rent roll for the related Mortgaged
Property, both certified by the related Mortgagor as being true and correct;
(vii) the Master Servicer expressly notifies the related Mortgagor in writing
that such extension is a one time option and diligently discusses exit
strategies with the related Mortgagor; and (viii) the Special Servicer consents
to such extension. The Special Servicer shall determine whether or not to direct
the Master Servicer to agree to such extension and shall use its best reasonable
efforts to provide or withhold its consent within ten days after the Special
Servicer is notified in writing by the Master Servicer of such request for
extension and has received sufficient information from the Master Servicer to
make an informed decision. The Special Servicer shall so notify the Master
Servicer of its decision by a certificate of a Servicing Officer. The Master
Servicer shall promptly provide the Special Servicer with such information as is
reasonably requested by the Special Servicer in order to make such decision. The
Special Servicer shall be entitled to rely, absent manifest error, on the
information provided by the Master Servicer, without any independent
investigation. No extension entered into pursuant to this Section 3.20(a) shall
be for a period of more than twelve months from the original maturity date of
such Mortgage Loan or shall extend the maturity date beyond the earlier of (i)
two years prior to the Rated Final Distribution Date and (ii) in the case of a
Mortgage Loan secured by a leasehold estate, the date ten years prior to the
termination of such leasehold estate. No more than one such extension may be
granted by the Master Servicer with respect to any particular Mortgage Loan.
(b) If, but only if, the Special Servicer determines that a
modification, waiver or amendment (including, without limitation, the
forgiveness or deferral of interest or principal or the substitution or release
of collateral or the pledge of additional collateral) of the terms of a
Specially Serviced Mortgage Loan with respect to which a payment default or
other material default has occurred or a payment default is, in the Special
Servicer's judgment, reasonably foreseeable (as evidenced by an Officer's
Certificate of the Special Servicer), is reasonably likely to produce a greater
recovery on a present value basis (the relevant discounting to be performed at
the related Mortgage Rate) than liquidation of such Specially Serviced Mortgage
Loan, then the Special Servicer may, but is not required to, with the approval
or deemed approval of the Extension Adviser, in the case of an extension of the
maturity of a Specially Serviced Mortgage Loan beyond the third anniversary of
such Mortgage Loan's original maturity date, agree to a modification, waiver or
amendment of such Specially Serviced Mortgage Loan, subject to the provisions of
this Section 3.20(b).
The Special Servicer shall not agree to a modification, waiver or
amendment of any term of any Specially Serviced Mortgage Loan if such
modification, waiver or amendment would:
<PAGE>
(i) extend the maturity date of any such Specially Serviced Mortgage
Loan to a date occurring later than the earlier of (A) two years prior to
the Rated Final Distribution Date and (B) if such Specially Serviced
Mortgage Loan is secured by a leasehold estate, the date occurring ten
years prior to the termination of such leasehold; or
(ii) reduce the Net Mortgage Rate on any such Specially Serviced
Mortgage Loan to less than the lesser of (A) the original Net Mortgage Rate
or (B) 7.830 % per annum; or
(iii) reduce any Prepayment Premium, Yield Maintenance Charge or
Lock-out Period on any such Specially Serviced Mortgage Loan.
(c) Any provision of this Section 3.20 to the contrary
notwithstanding, no fee described in this paragraph shall be collected by any
Master Servicer or Special Servicer from a Mortgagor (or on behalf of the
Mortgagor) in conjunction with any consent or any modification, waiver or
amendment of a Mortgage Loan (unless the amount thereof is specified in the
related Mortgage Note) if the collection of such fee would cause such consent,
modification, waiver or amendment to be a "significant modification" of the
Mortgage Note within the meaning of Treasury Regulations Section 1.860G-2(b).
(d) Notwithstanding anything to the contrary in this Agreement, the
Master Servicer may agree to any waiver, modification or amendment that would
not be a "significant modification" of the Mortgage Loan within the meaning of
Treasury Regulations Section 1.860G-2(b), provided that the proposed
modification, amendment or waiver will not cause (x) either the Lower-Tier REMIC
or the Upper-Tier REMIC to fail to qualify as a REMIC for purposes of the Code,
or (y) either the Lower-Tier REMIC or the Upper-Tier REMIC to be subject to any
tax under the REMIC Provisions. With respect to all modifications, amendments
and waivers entered into by the Master Servicer pursuant to this Section
3.20(d), the Master Servicer shall provide the Trustee with an Opinion of
Counsel (at the expense of the related Mortgagor or such other Person requesting
such modification or, if such expense cannot be collected from the related
Mortgagor or such other Person, at the expense of the Trust Fund) to the effect
that the contemplated, waiver, modification or amendment (i) will not be a
"significant modification" of the Mortgage Loan within the meaning of Treasury
Regulations Section 1.860G-2(b) and (ii) will not cause either clause (x) or (y)
of this Section 3.20(d) to occur (it being understood that no such Opinion of
Counsel is required for any extension permitted pursuant to Section 3.20(a)).
(e) Any payment of interest, which is deferred pursuant to any
modification, waiver or amendment permitted hereunder, shall not, for purposes
hereof, including, without limitation, calculating monthly distributions to
Certificateholders, be added to the unpaid principal balance of the related
Mortgage Loan, notwithstanding that the terms of such Mortgage Loan or such
modification, waiver or amendment so permit or that such interest may actually
be capitalized.
<PAGE>
(f) Notwithstanding anything to the contrary herein, neither the
Master Servicer nor the Special Servicer shall modify, waive or amend any term
of a Mortgage Loan that requires the payment of a Prepayment Premium or Yield
Maintenance Charge in connection with any Principal Prepayment in full thereon.
(g) Subject to Section 3.20(c), the Master Servicer and the Special
Servicer each may, as a condition to its granting any request by a Mortgagor for
consent, modification, waiver or indulgence or any other matter or thing, the
granting of which is within the Master Servicer's or the Special Servicer's, as
the case may be, discretion pursuant to the terms of the instruments evidencing
or securing the related Mortgage Loan and is permitted by the terms of this
Agreement, require that such Mortgagor pay to the Master Servicer or the Special
Servicer, as the case may be, as additional servicing compensation, a reasonable
or customary fee (not to exceed 1.0% of the unpaid principal balance of the
related Mortgage Loan), for the additional services performed in connection with
such request.
(h) All modifications, waivers and amendments of the Mortgage Loans
entered into pursuant to this Section 3.20 shall be in writing, signed by the
Master Servicer or the Special Servicer, as the case may be, and the related
Mortgagor (and by any guarantor of the related Mortgage Loan).
(i) Each of the Master Servicer and the Special Servicer shall notify
the Trustee, the other such party, in writing, of any modification, waiver or
amendment of any term of any Mortgage Loan and the date thereof, and shall
deliver to the Trustee or the related Custodian for deposit in the related
Mortgage File, an original counterpart of the agreement relating to such
modification, waiver or amendment, promptly (and in any event within 10 Business
Days) following the execution thereof. Within 15 days of the Master Servicer's
or Special Servicer's delivery of the aforesaid modification, waiver or
amendment to the Trustee, the Master Servicer or Special Servicer, as
applicable, shall forward a copy thereof to each Holder of a Class F, Class G,
Class H and Class UR Certificate.
SECTION 3.21. Transfer of Servicing Between Master Servicer and
Special Servicer; Record Keeping; Asset Strategy Report.
--------------------------------------------------------
(a) Upon determining that a Servicing Transfer Event has occurred with
respect to any Mortgage Loan, the Master Servicer shall immediately give notice
thereof, and shall deliver the related Mortgage File and Credit File to the
Special Servicer and shall use its best efforts to provide the Special Servicer
with all information, documents and records (including records stored
electronically on computer tapes, magnetic discs and the like) relating to the
Mortgage Loan and reasonably requested by the Special Servicer to enable it to
assume its functions hereunder with respect thereto without acting through a
Sub-Servicer. The Master Servicer shall use its best efforts to comply with the
preceding sentence within five Business Days of the occurrence of each related
Servicing Transfer Event and in any event shall continue to act as Master
Servicer and administrator of such Mortgage Loan until the Special Servicer has
commenced the servicing of such Mortgage Loan. The Master Servicer shall deliver
to each Holder of a Class F, Class G, Class H and Class UR Certificate a copy of
the notice of such Servicing Transfer Event provided by the Master Servicer to
the Special Servicer pursuant to this Section.
<PAGE>
Upon determining that a Specially Serviced Mortgage Loan (other than
an REO Loan) has become current and has remained current for three consecutive
Monthly Payments, and that no other Servicing Transfer Event is continuing with
respect thereto, the Special Servicer shall immediately give notice thereof, and
shall return the related Mortgage File and Credit File to the Master Servicer
and upon giving such notice, and returning such Mortgage File and Credit File to
the Master Servicer, the Special Servicer's obligation to service such Mortgage
Loan shall terminate and the obligations of the Master Servicer to service and
administer such Mortgage Loan shall re-commence.
(b) In servicing any Specially Serviced Mortgage Loans, the Special
Servicer will provide to the Trustee originals of documents included within the
definition of "Mortgage File" for inclusion in the related Mortgage File (with a
copy of each such original to the Master Servicer), and provide the Master
Servicer with copies of any additional related Mortgage Loan information
including correspondence with the related Mortgagor.
(c) On or before each Determination Date, the Special Servicer shall
deliver to the Master Servicer a written statement describing, on a loan-by-loan
and property-by-property basis, (1) the information described in clause (vi) of
Section 4.02(a) with respect to each Specially Serviced Mortgage Loan and the
information described in clause (vii) of Section 4.02(a) with respect to each
REO Property, (2) the amount of all payments, Insurance Proceeds and Liquidation
Proceeds received with respect to each Specially Serviced Mortgage Loan during
the related Due Period, and the amount of all REO Revenues, Insurance Proceeds
and Liquidation Proceeds received with respect to each REO Property during the
related Due Period, (3) the amount, purpose and date of all Servicing Advances
made by the Master Servicer with respect to each Specially Serviced Mortgage
Loan and REO Property during the related Due Period, and (4) such additional
information relating to the Specially Serviced Mortgage Loans and REO Properties
as the Master Servicer reasonably requests to enable it to perform its
responsibilities under this Agreement.
(d) Notwithstanding the provisions of the preceding clause (c), the
Master Servicer shall maintain ongoing payment records with respect to each of
the Specially Serviced Mortgage Loans and REO Properties and shall provide the
Special Servicer with any information in its possession required by the Special
Servicer to perform its duties under this Agreement.
(e) No later than thirty (30) days after a Servicing Transfer Event
for a Mortgage Loan, the Special Servicer shall deliver to the Trustee, the
Master Servicer, each Rating Agency, each Class F, Class G, Class H and Class UR
Certificateholder, and the Directing Certificateholder a report (the "Asset
Strategy Report") with respect to such Mortgage Loan and the related Mortgaged
Property. Such Asset Strategy Report shall set forth the following information
to the extent reasonably determinable:
<PAGE>
(i) summary of the status of such Specially Serviced Mortgage Loan and
any negotiations with the related Mortgagor;
(ii) a discussion of the legal and environmental considerations
reasonably known to the Special Servicer, consistent with the Servicing
Standards, that are applicable to the exercise of remedies as aforesaid and
to the enforcement of any related guaranties or other collateral for the
related Mortgage Loan and whether outside legal counsel has been retained;
(iii) the most current rent roll and income or operating statement
available for the related Mortgaged Property;
(iv) the Special Servicer's recommendations on how such Specially
Serviced Mortgage Loan might be returned to performing status and returned
to the Master Servicer for regular servicing or otherwise realized upon;
(v) the Appraised Value of the Mortgaged Property together with the
assumptions used in the calculation thereof; and
(vi) such other information as the Special Servicer deems relevant in
light of the Servicing Standards.
If within ten (10) Business Days of receiving an Asset Strategy
Report, the Directing Certificateholder does not disapprove such Asset Strategy
Report in writing, the Special Servicer shall implement the recommended action
as outlined in such Asset Strategy Report; provided, however, that the Special
Servicer may not take any action that is contrary to applicable law or the terms
of the applicable Mortgage Loan documents. If the Directing Certificateholder
disapproves such Asset Strategy Report, the Special Servicer will revise such
Asset Strategy Report and deliver to the Trustee, the Directing
Certificateholder and the Master Servicer a new Asset Strategy Report as soon as
practicable. The Special Servicer shall revise such Asset Strategy Report as
described above in this Section 3.21(e) until the Directing Certificateholder
shall fail to disapprove such revised Asset Strategy Report in writing within
ten (10) Business Days of receiving such revised Asset Strategy Report. The
Special Servicer may, from time to time, modify any Asset Strategy Report it has
previously delivered and implement such report, provided such report shall have
been prepared, reviewed and not rejected pursuant to the terms of this Section.
Notwithstanding the foregoing, the Special Servicer (i) may following the
occurrence of an extraordinary event with respect to the related Mortgaged
Property, take any action set forth in such Asset Strategy Report before the
expiration of a ten (10) Business Day period if the Special Servicer has
reasonably determined that failure to take such action would materially and
adversely affect the interests of the Certificateholders and it has made a
reasonable effort to contact the Directing Certificateholder and (ii) in any
case, shall determine whether such disapproval is not in the best interest of
all the Certificateholders pursuant to the Servicing Standards. Upon making such
determination, the Special Servicer shall notify the Trustee of such rejection
and deliver to the Trustee a proposed notice to Certificateholders which shall
include a copy of the Asset Strategy Report, and the Trustee shall send such
notice to all Certificateholders. If the majority of such Certificateholders, as
determined by Voting Rights, fail, within five (5) days of the Trustee's sending
such notice, to reject such Asset Strategy Report, the Special Servicer shall
implement the same. If the Asset Strategy Report is rejected by the
Certificateholders, the Special Servicer shall revise such Asset Strategy Report
as described above in this Section 3.21(e). The Trustee shall be entitled to
reimbursement from the Trust Fund for the reasonable expenses of providing such
notices.
<PAGE>
The Special Servicer shall have the authority to meet with the
Mortgagor for any Specially Serviced Mortgage Loan and take such actions
consistent with the Servicing Standards and the related Asset Strategy Report.
The Special Servicer shall not take any action inconsistent with the related
Asset Strategy Report, unless such action would be required in order to act in
accordance with the Servicing Standards.
Upon request of any Certificateholder (or any Certificate Owner, if
applicable, which shall have provided the Trustee with evidence satisfactory to
the Special Servicer and the Trustee of its interest in a Certificate), the
Trustee shall mail, without charge, to the address specified in such request a
copy of the most current Asset Strategy Report for any Specially Serviced
Mortgage Loan or REO Property. Prior to delivering an Asset Strategy Report to
any such Certificateholder, the Trustee shall have obtained an acknowledgment
from the recipient thereof that United States securities law may restrict the
use of the information in the Asset Strategy Report.
No direction of the Directing Certificateholder shall (A) require or
cause the Special Servicer to violate the terms of a Specially Serviced Mortgage
Loan, applicable law or any provision of this Agreement, including the Special
Servicer's obligation to act in accordance with the Servicing Standards and to
maintain the REMIC status of each REMIC, or (B) result in the imposition of a
"prohibited transaction" or "prohibited contribution" tax under the REMIC
Provisions, or (C) expose the Master Servicer, the Special Servicer, the
Depositor, the Mortgage Loan Seller, the Trust Fund, the Trustee or their
officers, directors, employees or agents to any claim, suit or liability, or (D)
materially expand the scope of the Special Servicer's or the Master Servicer's
responsibilities under this Agreement.
SECTION 3.22. Sub-Servicing Agreements.
------------------------
(a) The Master Servicer and the Special Servicer may enter into
Sub-Servicing Agreements to provide for the performance by third parties of any
or all of their respective obligations under Articles III and IV hereof;
provided that, in each case, the Sub-Servicing Agreement: (i) is consistent with
this Agreement in all material respects and requires the Sub-Servicer to comply
with all of the applicable conditions of this Agreement; (ii) provides that if
the Master Servicer or the Special Servicer, as the case may be, shall for any
reason no longer act in such capacity hereunder (including, without limitation,
by reason of an Event of Default), the Trustee or its designee may thereupon
assume all of the rights and, except to the extent they arose prior to the date
of assumption, obligations of the Master Servicer or the Special Servicer, as
the case may be, under such agreement, or, alternatively, may act in accordance
with Section 7.02 hereof under the circumstances described therein; (iii)
provides that the Trustee for the benefit of the Certificateholders shall be a
third party beneficiary under such agreement, but that (except to the extent the
Trustee or its designee assumes the obligations of the Master Servicer or the
Special Servicer, as the case may be, thereunder as contemplated by the
immediately preceding clause (ii)) none of the Trust Fund, the Trustee, any
successor Master Servicer or Special Servicer, as the case may be, or any
Certificateholder shall have any duties under such agreement or any liabilities
arising therefrom; (iv) permits any purchaser of a Mortgage Loan pursuant to
this Agreement to terminate such agreement with respect to such purchased
Mortgage Loan at its option and without penalty; (v) does not permit the
Sub-Servicer to enter into or consent to any modification, waiver or amendment
or otherwise take any action on behalf of the Special Servicer contemplated by
Section 3.20 hereof without the consent of such Special Servicer; and (vi) does
not permit the Sub-Servicer any direct rights of indemnification that may be
satisfied out of assets of the Trust Fund. In addition, each Sub-Servicing
Agreement entered into by the Master Servicer may provide that the obligations
of the Sub-Servicer thereunder shall terminate with respect to any Mortgage Loan
serviced thereunder at the time such Mortgage Loan becomes a Specially Serviced
Mortgage Loan, and each Sub-Servicing Agreement entered into by the Special
Servicer shall relate only to Specially Serviced Mortgage Loans, and the
obligations of the Sub-Servicer thereunder shall terminate with respect to any
such Mortgage Loan which ceases to be a Specially Serviced Mortgage Loan;
provided, however, that the Sub-Servicing Agreement may provide that the
Sub-Servicer will continue to make all calculations and prepare all reports
required under the Sub-Servicing Agreement with respect to Specially Serviced
Mortgage Loans as if no Servicing Transfer Event had occurred and with respect
to REO Properties (and the related REO Loans) as if no REO Acquisition had
occurred and to render such incidental services with respect to such Specially
Serviced Mortgage Loans and REO Properties as are specifically provided for in
such Sub-Servicing Agreement. The Master Servicer and the Special Servicer each
shall deliver to the Trustee copies of all Sub-Servicing Agreements, and any
amendments thereto and modifications thereof, entered into by it promptly upon
its execution and delivery of such documents. References in this Agreement to
actions taken or to be taken by the Master Servicer or the Special Servicer
include actions taken or to be taken by a Sub-Servicer on behalf of the Master
Servicer or the Special Servicer, as the case may be; and, in connection
therewith, all amounts advanced by any Sub-Servicer to satisfy the obligations
of the Master Servicer hereunder to make Servicing Advances shall be deemed to
have been advanced by the Master Servicer out of its own funds and, accordingly,
such Servicing Advances shall be recoverable by such Sub-Servicer in the same
manner and out of the same funds as if such Sub-Servicer were the Master
Servicer, and, for so long as they are outstanding, such Servicing Advances
shall accrue interest in accordance with Section 3.03(d), such interest to be
allocable between the Master Servicer and such Sub-Servicer pursuant to the
terms of the Sub-Servicing Agreement. For purposes of this Agreement, the Master
Servicer and the Special Servicer each shall be deemed to have received any
payment when a Sub-Servicer retained by it receives such payment. The Master
Servicer and the Special Servicer each shall notify the other such party, the
Trustee and the Depositor in writing promptly of the appointment by it of any
Sub-Servicer.
<PAGE>
(b) Each Sub-Servicer shall be authorized to transact business in the
state or states in which the related Mortgaged Properties it is to service are
situated, if and to the extent required by applicable law.
(c) As part of its servicing activities hereunder, each of the Master
Servicer and the Special Servicer, for the benefit of the Trustee and the
Certificateholders, shall (at no expense to the Trustee, the Certificateholders
or the Trust Fund) monitor the performance and enforce the obligations of each
Sub-Servicer under the related Sub-Servicing Agreement. Such enforcement,
including, without limitation, the legal prosecution of claims, termination of
Sub-Servicing Agreements in accordance with their respective terms and the
pursuit of other appropriate remedies, shall be in such form and carried out to
such an extent and at such time as the Master Servicer or the Special Servicer,
as applicable, would require were it the owner of the Mortgage Loans. The Master
Servicer and the Special Servicer shall have the right to remove a Sub-Servicer
retained by it in accordance with the terms of the related Sub-Servicing
Agreement.
(d) In the event the Trustee or its designee assumes the rights and
obligations of the Master Servicer or the Special Servicer under any
Sub-Servicing Agreement, the Master Servicer or the Special Servicer, as
applicable, at its expense shall, upon request of the Trustee, deliver to the
assuming party all documents and records relating to such Sub-Servicing
Agreement and the Mortgage Loans then being serviced thereunder and an
accounting of amounts collected and held on behalf of it thereunder, and
otherwise use reasonable efforts to effect the orderly and efficient transfer of
the Sub-Servicing Agreement to the assuming party.
(e) Notwithstanding any Sub-Servicing Agreement, the Master Servicer
and the Special Servicer shall remain obligated and liable to the Trustee and
the Certificateholders for the performance of their respective obligations and
duties under this Agreement in accordance with the provisions hereof to the same
extent and under the same terms and conditions as if each alone were servicing
and administering the Mortgage Loans for which it is responsible, and the Master
Servicer and the Special Servicer shall pay the fees of any Sub-Servicer
thereunder from their own funds. In no event shall the Trust Fund bear any
termination fee required to be paid to any Sub-Servicer as a result of such
Sub-Servicer's termination under any Sub-Servicing Agreement.
(f) The Trustee shall furnish to any Sub-Servicer any powers of
attorney and other documents necessary or appropriate to enable such
Sub-Servicer to carry out its servicing and administrative duties under any
Sub-Servicing Agreement; provided, however, that the Trustee shall not be held
liable for any negligence with respect to, or misuse of, any such power of
attorney by a Sub-Servicer.
SECTION 3.23. Representations and Warranties of the Master Servicer.
-----------------------------------------------------
(a) The Master Servicer hereby represents and warrants to the Trustee,
for its own benefit and the benefit of the Certificateholders, and to the
Depositor, the Special Servicer and the REMIC Administrator, as of the Closing
Date, that:
<PAGE>
(i) The Master Servicer is a corporation duly organized, validly
existing and in good standing under the laws of the State of Texas, and the
Master 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 Master
Servicer, and the performance and compliance with the terms of this
Agreement by the Master Servicer, will not violate the Master Servicer's
charter 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, or result in the
violation of any law, rule, regulation, order, judgment or decree to which
the Master Servicer or its property is subject.
(iii) This Agreement, assuming due authorization, execution and
delivery by the Trustee and the Depositor, constitutes a valid, legal and
binding obligation of the Master Servicer, enforceable against the Master
Servicer in accordance with the terms hereof, subject to applicable
bankruptcy, insolvency, reorganization, moratorium and other laws affecting
the enforcement of creditors' rights generally, and general principles of
equity, regardless of whether such enforcement is considered in a
proceeding in equity or at law.
(iv) The Master Servicer is not in default with respect to any order
or decree of any court, or any order, regulation or demand of any federal,
state, municipal or governmental agency, which default might have
consequences that would materially and adversely affect the condition
(financial or other) or operations of the Master Servicer or its properties
or might have consequences that would materially and adversely affect its
ability to perform its duties and obligations hereunder.
(v) 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 the ability of the Master Servicer to perform its
obligations under this Agreement.
(vi) No information, certificate of an officer, statement furnished in
writing or report delivered to the Depositor, any Affiliate of the
Depositor or the Trustee by the Master Servicer will, to the knowledge of
the Master Servicer, contain any untrue statement of a material fact or
omit a material fact necessary to make the information, certificate,
statement or report not misleading.
(vii) The Master Servicer has examined each existing, and will examine
each new, Sub-Servicing Agreement and is or will be familiar with the terms
thereof. The terms of each existing Sub-Servicing Agreement and each
designated Sub-Servicer are acceptable to the Master Servicer and any new
Sub-Servicing Agreements will comply with the provisions of Section 3.22.
(viii) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by the Master Servicer, or compliance by the Master Servicer
with, this Agreement or the consummation of the transactions contemplated
by this Agreement, except for any consent, approval, authorization or order
which has not been obtained or cannot be obtained prior to the actual
performance by the Master Servicer of its obligations under this Agreement,
and which, if not obtained would not have a materially adverse effect on
the ability of the Master Servicer to perform its obligations hereunder.
<PAGE>
(b) The representations and warranties set forth in paragraph (a)
above shall survive the execution and delivery of the Agreement. The Master
Servicer shall indemnify the Trustee and the Trust Fund and hold each of them
harmless against any losses, damages, penalties, fines, forfeitures, and legal
fees and related costs, judgments, and other costs and expenses resulting from
any claim, demand, defense or assertion arising from, or resulting from a
material breach of the Master Servicer's representations and warranties
contained in paragraph (a) above. Such indemnification shall survive any
termination or resignation of the Master Servicer, and any termination of the
Agreement.
SECTION 3.24. Representations and Warranties of the Special Servicer.
------------------------------------------------------
(a) The Special Servicer hereby represents and warrants to the
Trustee, for its own benefit and the benefit of the Certificateholders, and to
the Depositor, the Master Servicer and the REMIC Administrator, as of the
Closing Date, that:
(i) The Special Servicer is a corporation duly organized, validly
existing and in good standing under the laws of the State of Texas, 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
charter 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, or result in the
violation of any law, rule, regulation, order, judgment or decree to which
the Special Servicer or its property is subject.
(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 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.
<PAGE>
(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, director, employee, consultant or advisor of the
Special Servicer that has or, following the occurrence of a Servicing
Transfer Event, would have responsibilities concerning the servicing and
administration of Mortgage Loans is covered by errors and omissions
insurance in the amounts and with the coverage required by Section 3.07(c).
Neither the Special Servicer nor any of its officers, directors, employees,
consultants or advisors that is or, following the occurrence of a Servicing
Transfer Event, would be involved in the servicing or administration of
Mortgage Loans has been refused such coverage or insurance.
(viii) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by the Special Servicer, or compliance by the Special Servicer
with, this Agreement or the consummation of the transactions contemplated
by this Agreement, except for any consent, approval, authorization or order
which has not been obtained or cannot be obtained prior to the actual
performance by the Special Servicer of its obligations under this
Agreement, and which, if not obtained would not have a materially adverse
effect on the ability of the Special Servicer to perform its obligations
hereunder.
(b) The representations and warranties set forth in paragraph (a)
above will survive the execution and delivery of the Agreement. The Special
Servicer shall indemnify the Trustee and the Trust Fund and hold them harmless
against any losses, damages, penalties, fines, forfeitures, legal fees and
related costs, judgments, and other costs and expenses resulting from any claim,
demand, defense or assertion based on or grounded upon, or resulting from a
material breach of the Special Servicer's representations and warranties
contained in paragraph (a) above. Such indemnification shall survive any
termination of the Special Servicer, and any termination of the Agreement.
<PAGE>
SECTION 3.25. Duties of the Extension Adviser.
-------------------------------
(a) The Special Servicer may not extend the maturity of any Specially
Serviced Mortgage Loan beyond the third anniversary of such Mortgage Loan's
original maturity date, unless the Extension Adviser elected pursuant to Section
3.26 shall have approved such extension in writing within ten days after
receiving from the Special Servicer the information, analysis and certification
required by Section 3.25(b). If a written objection to such extension from the
Extension Adviser has not been received by the Special Servicer within said
ten-day period, then the Extension Adviser's approval shall be deemed to have
been given.
(b) The Special Servicer shall, with respect to any proposed extension
of a Specially Serviced Mortgage Loan beyond the third anniversary of such
Mortgage Loan's original maturity date, prepare and deliver to the Extension
Adviser, a summary of such proposed extension and an analysis summarizing the
bases of its conclusion that such extension is reasonably likely to produce a
greater recovery on a present value basis (the relevant discounting to be
performed at the related Net Mortgage Rate) than liquidation of such Mortgage
Loan. Such analysis shall specify the basis on which the Special Servicer has
made such determination, including the status of any existing material default
or the grounds for concluding that a payment default is imminent. The Special
Servicer shall promptly provide the Extension Adviser with such information as
is requested by the Extension Adviser (including, without limitation, operating
statements, rents rolls, appraisals, environmental reports, inspection reports
and financial statements of the applicable Mortgagor) in connection with any
proposed extension. The Extension Adviser shall be entitled to rely on the
information provided by the Special Servicer without any independent
investigation or verification on the part of the Extension Adviser. In addition,
the Special Servicer, in connection with each request for extension, shall
provide to the Extension Adviser an Officer's Certificate confirming that all
conditions precedent to the granting of any such extension set forth in this
Agreement (other than the approval of the Extension Adviser) have been
satisfied.
(c) No direction of the Extension Adviser shall (A) require or cause
the Special Servicer to violate the terms of a Specially Serviced Mortgage Loan,
applicable law or any provision of this Agreement, including the Special
Servicer's obligation to act in accordance with the Servicing Standards and to
maintain the REMIC status of each REMIC, or (B) result in the imposition of a
"prohibited transaction" or "prohibited contribution" tax under the REMIC
Provisions, or (C) expose the Master Servicer, the Special Servicer, the
Depositor, the Mortgage Loan Seller, the Trust Fund, the Trustee or their
officers, directors, employees or agents to any claim, suit or liability, or (D)
materially expand the scope of the Special Servicer's or the Master Servicer's
responsibilities under this Agreement.
<PAGE>
(d) As compensation for performing its duties set forth in this
Agreement, the Extension Adviser shall be entitled to reimbursement of its
reasonable out-of-pocket expenses and payment of a commercially reasonable fee
(which fee shall not exceed $1,500 per extension proposal reviewed by the
Extension Adviser), which amounts shall be paid out of the Trust Fund.
SECTION 3.26. Extension Adviser; Elections.
----------------------------
(a) The Class A, Class B, Class C and Class D Certificateholders will
be entitled to elect, and shall be deemed to have elected, the Trustee or a
designee of the Trustee as their representative (the "Extension Adviser") as
provided in this Section 3.26. The Trustee (or any other Person duly elected as
Extension Advisor) may resign as Extension Advisor at any time for any reason or
no reason upon not less than 5 Business Days' written notice to the Depositor,
the Trustee, the Special Servicer, the Master Servicer and each Class A, Class
B, Class C and Class D Certificateholder. Upon (i) the receipt by the Trustee of
written requests for an election of an Extension Adviser from such
Certificateholders representing more than 50% of the Voting Rights of all the
Class A, Class B, Class C and Class D Certificates, or (ii) the resignation or
removal of the Person acting as Extension Adviser, an election of a successor
Extension Adviser shall be held commencing as soon as practicable thereafter.
The Extension Adviser shall be elected for the purpose of approving certain
actions of the Special Servicer specified herein in respect of extending the
maturity of any Specially Serviced Mortgage Loan beyond the third anniversary of
its original maturity date.
(b) After any such receipt, resignation, removal or determination
contemplated by Section 3.26(a), the Trustee shall call a meeting of the Holders
of the Class A, Class B, Class C and Class D Certificates, if any, for the
purpose of electing an Extension Adviser. Notice of any such meeting of such
Holders shall be mailed or delivered to each Holder not less than 10 days nor
more than 60 days prior to the meeting. The notice shall state the place and the
time of the meeting, which may be held by telephone. Certificateholders
representing a majority (by Certificate Balance) of the Certificates of the
applicable Class or Classes, present in person or represented by proxy, shall
constitute a quorum for the nomination of an Extension Adviser. At the meeting,
each such Holder shall be entitled to nominate one Person to act as Extension
Adviser. The Trustee shall cause the election of the Extension Adviser to be
held as soon thereafter as convenient.
(c) Each Holder of a Class A, Class B, Class C and Class D Certificate
shall be entitled to vote in each election of the Extension Adviser. The voting
in each election of the Extension Adviser shall be in writing mailed, delivered
or sent by courier and actually received by the Trustee on or prior to the date
of such election. Immediately upon receipt by the Trustee of votes (which have
not been rescinded) from the Holders of such Certificates representing more than
50% of the Voting Rights of all the Class A, Class B, Class C and Class D
Certificates, which votes are cast for a single Person, such Person shall be,
upon such Person's acceptance, the Extension Adviser. In the event that after
the Closing Date an Extension Adviser shall have resigned or been removed and a
successor Extension Adviser shall not have been elected, there shall be no
Extension Adviser. Notwithstanding anything to the contrary contained herein,
the Special Servicer shall not have any right or obligation to consult with or
to seek and/or obtain approval or direction from an Extension Adviser, and
provisions of this Agreement relating thereto shall be of no effect, in any
event during any such period that there is no Extension Adviser.
<PAGE>
(d) The Extension Adviser may be removed at any time by the written
vote, copies of which must be delivered to the Trustee, of Holders of such
Certificates representing more than 50% of the Voting Rights of all the Class A,
Class B, Class C and Class D Certificates.
(e) The Trustee shall act as judge of each election of an Extension
Adviser, and, absent manifest error, the determination of the results of any
such election by the Trustee shall be conclusive. Notwithstanding any other
provisions of this Section 3.26, the Trustee may make such reasonable
regulations as it may deem advisable for any such election. Upon election of a
successor Extension Adviser, the Trustee shall promptly mail notice thereof by
first class mail to the Depositor, the Master Servicer, the Special Servicer,
the Mortgage Loan Seller and each of the Rating Agencies.
SECTION 3.27. Limitation on Liability of Extension Adviser.
--------------------------------------------
The Extension Adviser will be acting solely as a representative of the
interests of the Class A, Class B, Class C and Class D Certificateholders, and
shall not have any responsibility or liability to the Trust Fund or any other
Class or Classes of Certificateholders for any action taken, or for refraining
from the taking of any action, in good faith pursuant to this Agreement, or for
errors in judgment; provided, however, that this provision shall not protect the
Extension Adviser against any liability which would otherwise be imposed by
reason of willful misfeasance, bad faith or negligence in the performance of
duties or by reason of negligent disregard of obligations or duties hereunder.
By its acceptance of a Certificate, each Certificateholder confirms its
understanding that the Extension Adviser may take actions that favor the
interests of one or more Classes of the Certificates over other Classes of the
Certificates and that the Extension Adviser may have special relationships and
interests that conflict with those of Holders of some Classes of the
Certificates and, absent willful misfeasance, bad faith, negligence or negligent
disregard of obligations or duties on the part of the Extension Adviser, agrees
to take no action against the Extension Adviser or any of its officers,
directors, employees, principals or agents as a result of such a special
relationship or conflict.
[End of Article III]
<PAGE>
ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS
SECTION 4.01. Distributions.
-------------
(a) On each Distribution Date, to the extent of the Available
Distribution Amount for such Distribution Date, the Trustee shall transfer the
Lower-Tier Distribution Amount from the Lower-Tier Distribution Account to the
Upper-Tier Distribution Account in the amounts and priorities set forth in
Section 4.01(b) with respect to each Class of Uncertificated Lower-Tier
Interest, and immediately thereafter, shall make distributions thereof from the
Upper-Tier Distribution Account in the following order of priority, satisfying
in full, to the extent required and possible, each priority before making any
distribution with respect to any succeeding priority:
(i) first, to the Holders of the Class A-1 Certificates, the Class A-2
Certificates, the Class A-3 Certificates and the Class IO Certificates, pro
rata, in respect of interest, up to an amount equal to the aggregate
Interest Distribution Amount in respect of such Classes of Certificates for
such Distribution Date;
(ii) second, (A) to the Holders of the Class A-1 Certificates, in
reduction of the Certificate Balance thereof, an amount equal to the
Principal Distribution Amount, until the outstanding Certificate Balance of
the Class A-1 Certificates has been reduced to zero;
(B) after the Certificate Balance of the Class A-1 Certificates has
been reduced to zero, to the Holders of the Class A-2 Certificates, in
reduction of the Certificate Balance thereof, an amount equal to the
Principal Distribution Amount (or the portion thereof remaining after any
distributions in respect of the Class A-1 Certificates on such Distribution
Date), until the outstanding Certificate Balance of the Class A-2
Certificates has been reduced to zero.
(C) after the Certificate Balances of the Class A-1 and Class A-2
Certificates have been reduced to zero, to the Holders of the Class A-3
Certificates, in reduction of the Certificate Balance thereof, an amount
equal to the Principal Distribution Amount (or the portion thereof
remaining after any distributions in respect of the Class A-1 and Class A-2
Certificates on such Distribution Date), until the outstanding Certificate
Balance of the Class A-3 Certificates has been reduced to zero.
(iii) third, to the Holders of the Class A-1 Certificates, the Class
A-2 Certificates and the Class A-3 Certificates, pro rata, for the
unreimbursed amounts of Collateral Support Deficit, if any, an amount equal
to the aggregate of such unreimbursed Collateral Support Deficit previously
allocated to such Classes of Certificates;
<PAGE>
(iv) fourth, to the Holders of the Class B Certificates, in respect of
interest, up to an amount equal to the aggregate Interest Distribution
Amount in respect of such Class of Certificates for such Distribution Date;
(v) fifth, after the Certificate Balances of the Class A-1, Class A-2
and Class A-3 Certificates have been reduced to zero, to the Holders of the
Class B Certificates, in reduction of the Certificate Balance thereof, an
amount equal to the Principal Distribution Amount (or the portion thereof
remaining after any distributions in respect of the Class A Certificates on
such Distribution Date), until the outstanding Certificate Balance of the
Class B Certificates has been reduced to zero;
(vi) sixth, to the Holders of the Class B Certificates, for the
unreimbursed amounts of Collateral Support Deficit, if any, an amount equal
to the aggregate of such unreimbursed Collateral Support Deficit previously
allocated to such Class of Certificates;
(vii) seventh, to the Holders of the Class C Certificates, in respect
of interest, up to an amount equal to the aggregate Interest Distribution
Amount in respect of such Class of Certificates for such Distribution Date;
(viii) eighth, after the Certificate Balances of the Class A-1, Class
A-2, Class A-3 and Class B Certificates have been reduced to zero, to the
Holders of the Class C Certificates, in reduction of the Certificate
Balance thereof, an amount equal to the Principal Distribution Amount (or
the portion thereof remaining after any distributions in respect of the
Class A and Class B Certificates on such Distribution Date), until the
outstanding Certificate Balance of the Class C Certificates has been
reduced to zero;
(ix) ninth, to the Holders of the Class C Certificates, for the
unreimbursed amounts of Collateral Support Deficit, if any, an amount equal
to the aggregate of such unreimbursed Collateral Support Deficit previously
allocated to such Class of Certificates;
(x) tenth, to the Holders of the Class D Certificates, in respect of
interest, up to an amount equal to the aggregate Interest Distribution
Amount in respect of such Class of Certificates for such Distribution Date;
(xi) eleventh, after the Certificate Balances of the Class A-1, Class
A-2, Class A-3, Class B and Class C Certificates have been reduced to zero,
to the Holders of the Class D Certificates, in reduction of the Certificate
Balance thereof, an amount equal to the Principal Distribution Amount (or
the portion thereof remaining after any distributions in respect of the
Class A, Class B and Class C Certificates on such Distribution Date), until
the outstanding Certificate Balance of the Class D Certificates has been
reduced to zero;
<PAGE>
(xii) twelfth, to the Holders of the Class D Certificates, for the
unreimbursed amounts of Collateral Support Deficit, if any, an amount equal
to the aggregate of such unreimbursed Collateral Support Deficit previously
allocated to such Class of Certificates;
(xiii) thirteenth, to the Holders of the Class E Certificates, in
respect of interest, up to an amount equal to the aggregate Interest
Distribution Amount in respect of such Class of Certificates for such
Distribution Date;
(xiv) fourteenth, after the Certificate Balances of the Class A-1,
Class A-2, Class A-3, Class B, Class C and Class D Certificates have been
reduced to zero, to the Holders of the Class E Certificates, in reduction
of the Certificate Balance thereof, an amount equal to the Principal
Distribution Amount (or the portion thereof remaining after any
distributions in respect of the Class A, Class B, Class C and Class D
Certificates on such Distribution Date), until the outstanding Certificate
Balance of the Class E Certificates has been reduced to zero;
(xv) fifteenth, to the Holders of the Class E Certificates, for the
unreimbursed amounts of Collateral Support Deficit, if any, an amount equal
to the aggregate of such unreimbursed Collateral Support Deficit previously
allocated to such Class of Certificates;
(xvi) sixteenth, to the Holders of the Class F Certificates, in
respect of interest, up to an amount equal to the aggregate Interest
Distribution Amount in respect of such Class of Certificates for such
Distribution Date;
(xvii) seventeenth, after the Certificate Balances of the Class A-1,
Class A-2, Class A-3, Class B, Class C, Class D and Class E Certificates
have been reduced to zero, to the Holders of the Class F Certificates, in
reduction of the Certificate Balance thereof, an amount equal to the
Principal Distribution Amount (or the portion thereof remaining after any
distributions in respect of the Class A, Class B, Class C, Class D and
Class E Certificates on such Distribution Date), until the outstanding
Certificate Balance of the Class F Certificates has been reduced to zero;
(xviii) eighteenth, to the Holders of the Class F Certificates, for
the unreimbursed amounts of Collateral Support Deficit, if any, an amount
equal to the aggregate of such unreimbursed Collateral Support Deficit
previously allocated to such Class of Certificates;
(xix) nineteenth, to the Holder of the Class G Certificates in respect
of interest, up to an amount equal to the aggregate Interest Distribution
Amount in respect of such Class of Certificates for such Distribution Date;
<PAGE>
(xx) twentieth, after the Certificate Balances of the Class A-1, Class
A-2, Class A-3, Class B, Class C, Class D, Class E and Class F Certificates
have been reduced to zero, to the Holders of the Class G Certificates, in
reduction of the Certificate Balance thereof, an amount equal to the
Principal Distribution Amount (or the portion thereof remaining after any
distributions in respect of the Class A, Class B, Class C, Class D, Class E
and Class F Certificates on such Distribution Date), until the outstanding
Certificate Balance of the Class G Certificates has been reduced to zero;
(xxi) twenty-first, to the Holder of the Class G Certificates, for the
unreimbursed amounts of Collateral Support Deficit, if any, an amount equal
to the aggregate of such unreimbursed Collateral Support Deficit previously
allocated to such Class of Certificates;
(xxii) twenty-second, to the Holders of the Class H Certificates, in
respect of interest, up to an amount equal to the aggregate Interest
Distribution Amount in respect of such Class of Certificates for such
Distribution Date;
(xxiii) twenty-third, after the Certificate Balances of the Class A-1,
Class A-2, Class A-3, Class B, Class C, Class D, Class E, Class F and Class
G Certificates have been reduced to zero, to the Holders of the Class H
Certificates, in reduction of the Certificate Balance thereof, an amount
equal to the Principal Distribution Amount (or the portion thereof
remaining after any distributions in respect of the Class A, Class B, Class
C, Class D, Class E, Class F and Class G Certificates on such Distribution
Date), until the outstanding Certificate Balance of the Class H
Certificates has been reduced to zero;
(xxiv) twenty-fourth, to the Holders of the Class H Certificates, for
the unreimbursed amounts of Collateral Support Deficit, if any, an amount
equal to the aggregate of such unreimbursed Collateral Support Deficit
previously allocated to such Class of Certificates;
(xxv) twenty-fifth, to the Holders of the Class UR Certificates in
respect of interest, up to an amount equal to the aggregate Interest
Distribution Amount in respect of such Class of Certificates for such
Distribution Date;
(xxvi) twenty-sixth, after the Certificate Balances of the Class A-1,
Class A-2, Class A-3, Class B, Class C, Class D, Class E, Class F, Class G
and Class H Certificates have been reduced to zero, to the Holders of the
Class UR Certificates, in reduction of the Certificate Balance thereof, an
amount equal to the Principal Distribution Amount (or the portion thereof
remaining after any distributions in respect of the Class A, Class B, Class
C, Class D, Class E, Class F, Class G and Class H Certificates on such
Distribution Date), until the outstanding Certificate Balance of the Class
UR Certificates has been reduced to zero;
(xxvii) twenty-seventh, to the Holders of the Class UR Certificates,
for the unreimbursed amounts of Collateral Support Deficit, if any, an
amount equal to the aggregate of such unreimbursed Collateral Support
Deficit previously allocated to such Class of Certificates;
<PAGE>
(xxviii) twenty-eighth, to the Class R Certificates, the amount, if
any, remaining in the Upper-Tier Distribution Account with respect to such
Distribution Date, but only to the extent of the Available Distribution
Amount for such Distribution Date.
(b) (i) The initial principal amounts, the amounts of principal of,
and interest rates on, each of the Uncertificated Lower-Tier Interests shall be
derived from the principal and interest on the Classes of REMIC Regular
Certificates in the manner set forth in the following table:
Uncertificated Initial Per Annum
Lower-Tier Lower-Tier Lower-Tier Rate of
Interest Principal Amount Principal Amount[FN1] Interest
- -------------- ---------------- ------------------ ---------
Class LA-1 $7,098.0719 0.01% x A-1 7.533%
Class LA-2 $9,679.1890 0.01% x A-2 7.515%
Class LA-3 $5,162.2341 0.01% x A-3 7.830%
Class LB $1,613.1981 0.01% x B 7.690%
Class LC $1,935.8378 0.01% x C 7.690%
Class LD $1,774.5179 0.01% x D 7.690%
Class LE $1,451.8783 0.01% x E 7.690%
Class LF $1,408.5788 0.01% x F 7.350%
Class LG $564.6193 0.01% x G 7.350%
Class LH $967.9189 0.01% x H 7.350%
Class LUR $967.9194 0.01% x UR 6.800%
Class LWAC 99.99% x 99.99% x SPB[FN2] [FN3]
initial SPB[FN2]
[FN1] The designations A-1, A-2, A-3, B, C, D, E, F, G, H and UR in this
column refer to 100% of the Certificate Balance of the Class A-1, Class
A-2, Class A-3, Class B, Class C, Class D, Class E, Class F, Class G,
Class H and Class UR Certificates, respectively, as of any applicable
date.
[FN2] The Class LWAC Uncertificated Interest has a Lower-Tier Principal
Amount equal to 99.99% of the SPB. As of any Distribution Date, the
"SPB" is the aggregate of the Stated Principal Balances of the Mortgage
Loans as of the preceding Distribution Date (after giving effect to the
distribution of principal on such Distribution Date) or the Cut-off
Date in the case of the first Distribution Date.
[FN3] Interest will accrue on the Class LWAC Uncertificated Interest during
each Interest Accrual Period at the weighted average Effective Net
Mortgage Rates of the Mortgage Loans, weighted on the basis of their
respective Stated Principal Balances as of the preceding Distribution
Date (after giving affect to the distribution of principal on such
Distribution Date) or, in the case of the first Distribution Date, the
Cut-off Date.
<PAGE>
(ii) On each Distribution Date, the Uncertificated Lower-Tier
Interests shall receive distributions of interest, principal and other amounts
in the following order of priority, based on the amounts distributable to the
Classes of REMIC Regular Certificates:
(1) amounts distributable as interest to the Class A-1
Certificates pursuant to Section 4.01(a)(i) shall be
allocated 0.01% to the Class LA-1 Uncertificated Interest
and 99.99% to the Class LWAC Uncertificated Interest;
(2) amounts distributable as principal to the Class A-1
Certificates pursuant to Section 4.01(a)(ii)(a) or Section
4.01(c) shall be allocated 0.01% to the Class LA-1
Uncertificated Interest and 99.99% to the Class LWAC
Uncertificated Interest;
(3) amounts distributable for unreimbursed amounts of Collateral
Support Deficit previously allocated to the Class A-1
Certificates pursuant to Section 4.01(a)(iii) shall be
allocated 0.01% to the Class LA-1 Uncertificated Interest
and 99.99% to the Class LWAC Uncertificated Interest;
(4) amounts distributable as interest to the Class A-2
Certificates pursuant to Section 4.01(a)(i) shall be
allocated 0.01% to the Class LA-2 Uncertificated Interest
and 99.99% to the Class LWAC Uncertificated Interest;
(5) amounts distributable as principal to the Class A-2
Certificates pursuant to Section 4.01(a)(ii)(b) or Section
4.01(c) shall be allocated 0.01% to the Class LA-2
Uncertificated Interest and 99.99% to the Class LWAC
Uncertificated Interest;
(6) amounts distributable for unreimbursed amounts of Collateral
Support Deficit previously allocated to the Class A-2
Certificates pursuant to Section 4.01(a)(iii) shall be
allocated 0.01% to the Class LA-2 Uncertificated Interest
and 99.99% to the Class LWAC Uncertificated Interest;
(7) amounts distributable as interest to the Class A-3
Certificates pursuant to Section 4.01(a)(i) shall be
allocated 0.01% to the Class LA-3 Uncertificated Interest
and 99.99% to the Class LWAC Uncertificated Interest;
<PAGE>
(8) amounts distributable as principal to the Class A-3
Certificates pursuant to Section 4.01(a)(ii)(c) or Section
4.01(c) shall be allocated 0.01% to the Class LA-3
Uncertificated Interest and 99.99% to the Class LWAC
Uncertificated Interest;
(9) amounts distributable for unreimbursed amounts of Collateral
Support Deficit previously allocated to the Class A-3
Certificates pursuant to Section 4.01(a)(iii) shall be
allocated 0.01% to the Class LA-3 Uncertificated Interest
and 99.99% to the Class LWAC Uncertificated Interest;
(10) amounts distributable as interest to the Class B
Certificates pursuant to Section 4.01(a)(iv) shall be
allocated 0.01% to the Class LB Uncertificated Interest and
99.99% to the Class LWAC Uncertificated Interest;
(11) amounts distributable as principal to the Class B
Certificates pursuant to Section 4.01(a)(v) shall be
allocated 0.01% to the Class LB Uncertificated Interest and
99.99% to the Class LWAC Uncertificated Interest;
(12) amounts distributable for unreimbursed amounts of Collateral
Support Deficit previously allocated to the Class B
Certificates pursuant to Section 4.01(a)(vi) shall be
allocated 0.01% to the Class LB Uncertificated Interest and
99.99% to the Class LWAC Uncertificated Interest;
(13) amounts distributable as interest to the Class C
Certificates pursuant to Section 4.01(a)(vii) shall be
allocated 0.01% to the Class LC Uncertificated Interest and
99.99% to the Class LWAC Uncertificated Interest;
(14) amounts distributable as principal to the Class C
Certificates pursuant to Section 4.01(a)(viii) shall be
allocated 0.01% to the Class LC Uncertificated Interest and
99.99% to the Class LWAC Uncertificated Interest;
(15) amounts distributable for unreimbursed amounts of Collateral
Support Deficit previously allocated to the Class C
Certificates pursuant to Section 4.01(a)(ix) shall be
allocated 0.01% to the Class LC Uncertificated Interest and
99.99% to the Class LWAC Uncertificated Interest;
(16) amounts distributable as interest to the Class D
Certificates pursuant to Section 4.01(a)(x) shall be
allocated 0.01% to the Class LD Uncertificated Interest and
99.99% to the Class LWAC Uncertificated Interest;
<PAGE>
(17) amounts distributable as principal to the Class D
Certificates pursuant to Section 4.01(a)(xi) shall be
allocated 0.01% to the Class LD Uncertificated Interest and
99.99% to the Class LWAC Uncertificated Interest;
(18) amounts distributable for unreimbursed amounts of Collateral
Support Deficit previously allocated to the Class D
Certificates pursuant to Section 4.01(a)(xii) shall be
allocated 0.01% to the Class LD Uncertificated Interest and
99.99% to the Class LWAC Uncertificated Interest;
(19) amounts distributable as interest to the Class E
Certificates pursuant to Section 4.01(a)(xiii) shall be
allocated 0.01% to the Class LE Uncertificated Interest and
99.99% to the Class LWAC Uncertificated Interest;
(20) amounts distributable as principal to the Class E
Certificates pursuant to Section 4.01(a)(xiv) shall be
allocated 0.01% to the Class LE Uncertificated Interest and
99.99% to the Class LWAC Uncertificated Interest;
(21) amounts distributable for unreimbursed amounts of Collateral
Support Deficit previously allocated to the Class E
Certificates pursuant to Section 4.01(a)(xv) shall be
allocated 0.01% to the Class LE Uncertificated Interest and
99.99% to the Class LWAC Uncertificated Interest;
(22) amounts distributable as interest to the Class F
Certificates pursuant to Section 4.01(a)(xvi) shall be
allocated 0.01% to the Class LF Uncertificated Interest and
99.99% to the Class LWAC Uncertificated Interest;
(23) amounts distributable as principal to the Class F
Certificates pursuant to Section 4.01(a)(xvii) shall be
allocated 0.01% to the Class LF Uncertificated Interest and
99.99% to the Class LWAC Uncertificated Interest.
(24) amounts distributable for unreimbursed amounts of Collateral
Support Deficit previously allocated to the Class F
Certificates pursuant to Section 4.01(a)(xviii) shall be
allocated 0.01% to the Class LF Uncertificated Interest and
99.99% to the Class LWAC Uncertificated Interest;
<PAGE>
(25) amounts distributable as interest to the Class G
Certificates pursuant to Section 4.01(a)(xix) shall be
allocated 0.01% to the Class LF Uncertificated Interest and
99.99% to the Class LWAC Uncertificated Interest;
(26) amounts distributable as principal to the Class G
Certificates pursuant to Section 4.01(a)(xx) shall be
allocated 0.01% to the Class LF Uncertificated Interest and
99.99% to the Class LWAC Uncertificated Interest.
(27) amounts distributable for unreimbursed amounts of Collateral
Support Deficit previously allocated to the Class G
Certificates pursuant to Section 4.01(a)(xxi) shall be
allocated 0.01% to the Class LG Uncertificated Interest and
99.99% to the Class LWAC Uncertificated Interest;
(28) amounts distributable as interest to the Class H
Certificates pursuant to Section 4.01(a)(xxii) shall be
allocated 0.01% to the Class LF Uncertificated Interest and
99.99% to the Class LWAC Uncertificated Interest;
(29) amounts distributable as principal to the Class H
Certificates pursuant to Section 4.01(a)(xxiii) shall be
allocated 0.01% to the Class LF Uncertificated Interest and
99.99% to the Class LWAC Uncertificated Interest.
(30) amounts distributable for unreimbursed amounts of Collateral
Support Deficit previously allocated to the Class H
Certificates pursuant to Section 4.01(a)(xxiv) shall be
allocated 0.01% to the Class LH Uncertificated Interest and
99.99% to the Class LWAC Uncertificated Interest;
(31) amounts distributable as interest to the Class UR
Certificates pursuant to Section 4.01(a)(xxv) shall be
allocated 0.01% to the Class LUR Uncertificated Interest and
99.99% to the Class LWAC Uncertificated Interest; and
(32) amounts distributable as principal to the Class UR
Certificates pursuant to Section 4.01(a)(xxvi) shall be
allocated 0.01% to the Class LUR Uncertificated Interest and
99.99% to the Class LWAC Uncertificated Interest.
<PAGE>
(33) amounts distributable for unreimbursed amounts of Collateral
Support Deficit previously allocated to the Class UR
Certificates pursuant to Section 4.01(a)(xxvii) shall be
allocated 0.01% to the Class LUR Uncertificated Interest and
99.99% to the Class LWAC Uncertificated Interest; and
(34) amounts distributable as interest to the Class IO
Certificates pursuant to Section 4.01(a)(i) shall be
allocated 100.00% to the Class LWAC Uncertificated Interest.
(iii) The amounts distributable pursuant to clauses (ii)(1) through
(34) above constitute the "Lower-Tier Distribution Amount." Subject to the
penultimate paragraph of Section 4.01(a), any amount that remains in the
Lower-Tier Distribution Account on each Distribution Date after distribution of
the Lower-Tier Distribution Amount shall be distributed to the Holders of the
Class LR Certificates (but only to the extent of the Available Distribution
Amount for such Distribution Date remaining in the Lower-Tier Distribution
Account, if any).
(c) On and after the Distribution Date on which the Certificate
Balances of the Subordinate Certificates have all been reduced to zero, the
Principal Distribution Amount will be distributed, pro rata, among the Classes
of Class A Certificates without regard to the priorities set forth in Section
4.01(a).
(d) On each Distribution Date, the Trustee shall withdraw from the
Lower-Tier Distribution Account an aggregate amount equal to all Prepayment
Premiums and Yield Maintenance Charges actually collected on the Mortgage Loans
or any REO Loans during the related Due Period and shall distribute such amount
in respect of the Class LA-1 Uncertificated Interest by depositing such amount
in the Upper-Tier Distribution Account.
(e) On each Distribution Date, until the Certificate Balances of the
Class A-1, Class A-2, Class A-3 and Class B Certificates have each been reduced
to zero, the Trustee shall withdraw any amounts on deposit in the Upper-Tier
Distribution Account that represent Prepayment Premiums and Yield Maintenance
Charges actually collected on Mortgage Loans or REO Loans during the related Due
Period and remitted in respect of the Class LA-1 Uncertificated Interest
pursuant to Section 4.01(d), and shall distribute (i) 80% of such amount to the
Class IO Certificates until the outstanding Notional Amount thereof has been
reduced to zero; and (ii) the remaining 20% of such Prepayment Premiums and
Yield Maintenance Charges, pro rata among the Class A-1, Class A-2, Class A-3
and Class B Certificates that are entitled to distributions of the Principal
Distribution Amount on such Distribution Date, in accordance with the portion of
the Principal Distribution Amount to which such Class is entitled relative to
such other Class A and Class B Certificates on such Distribution Date. Following
the reduction of the Certificate Balances of the Class A-1, Class A-2, Class A-3
and Class B Certificates to zero, the Trustee shall distribute 100% of any Yield
Maintenance Charges and Prepayment Premiums actually received during the related
Due Period with respect to such Mortgage Loans and remitted in respect of the
Class LA-1 Uncertificated Interest pursuant to Section 4.01(d) to the Class IO
Certificates.
<PAGE>
(f) (i) On each Distribution Date, to the extent any amount on a
Mortgage Loan with respect to which an Appraisal Reduction was required is
recovered from Liquidation Proceeds or other final payment with respect to such
Mortgage Loan in excess of the Adjusted Principal Balance (after giving effect
to all other amounts previously collected with respect thereto after such
Appraisal Reduction), an amount equal to the lesser of such excess or the sum of
the Appraisal Reduction Amounts with respect to such Mortgage Loan will be
distributed on each Class of Certificates to which such Appraisal Reductions
have been allocated, in the order in which such Appraisal Reductions were so
allocated, up to the aggregate Appraisal Reduction Amounts allocated to such
Class with respect to such Mortgage Loan pursuant to Section 4.05(a). Such
distribution shall be treated as a distribution of principal, to the extent such
Appraisal Reduction was allocated to increase the Certificate Balance of such
Class of Certificates, or as a distribution of Class Unpaid Interest Shortfall
with respect to such class, as if the Distributable Certificate Interest for
such Class had not been reduced by such Appraisal Reduction Amount for which
such distribution is made. The excess of the unpaid principal balance of such
Mortgage Loan over the Appraisal Reduction related to such Mortgage Loan is
referred to herein as the "Adjusted Principal Balance."
(ii) With respect to any Distribution Date, amounts distributed
pursuant to Section 4.01(f)(i) with respect to such Distribution Date shall be
distributed on the Uncertificated Lower-Tier Interests and shall be allocated as
follows: (A) as between (i) the Class LB, Class LC, Class LD, Class LE, Class
LF, Class LG, Class LH and Class LUR Uncertificated Interests and (ii) the Class
LWAC Uncertificated Interest, in the proportions in which principal to the
extent treated as a principal distribution in Section 4.01(f)(i) and in the
proportions in which interest is distributed thereto as set forth in Section
4.01(b)(ii) to the extent treated as a distribution of Class Unpaid Interest
Shortfall in Section 4.01(f)(i) is distributed thereto as set forth in Section
4.01(b)(ii) and (B) as among the Class LB, Class LC, Class LD, Class LE, Class
LF, Class LG, Class LH and Class LUR Uncertificated Interests, in the same
priority as the amount distributed to its Class of Related Certificates pursuant
to Section 4.01(f)(i).
(g) All distributions made with respect to each Class on each
Distribution Date shall be allocated pro rata among the outstanding Certificates
in such Class based on their respective Percentage Interests. Except as
otherwise specifically provided in Sections 4.01(h), 4.01(i) and 9.01, all such
distributions with respect to each Class on each Distribution Date shall be made
to the Certificateholders of the respective Class of record at the close of
business on the related Record Date and shall be made by wire transfer of
immediately available funds to the account of any such Certificateholder at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided the Trustee with wiring instructions no
less than five Business Days prior to the related Record Date (which wiring
instructions may be in the form of a standing order applicable to all subsequent
Distribution Dates) and is the registered owner of Certificates with an
aggregate initial Certificate Balance or Notional Amount, as applicable, of at
least $5,000,000, or otherwise by check mailed to the address of such
Certificateholder as it appears in the Certificate Register. The final
distribution on each Certificate (determined without regard to any possible
future reimbursement of Collateral Support Deficit previously allocated to such
Certificate) will be made in like manner, but only upon presentation and
surrender of such Certificate at the offices of the Certificate Registrar or
such other location specified in the notice to Certificateholders of such final
distribution.
<PAGE>
Each distribution with respect to a Book-Entry Certificate shall be
paid to the Depository, as Holder thereof, and the Depository shall be
responsible for crediting the amount of such distribution to the accounts of its
Depository Participants in accordance with its normal procedures. Each
Depository Participant shall be responsible for disbursing such distribution to
the Certificate Owners that it represents and to each indirect participating
brokerage firm (a "brokerage firm" or "indirect participating firm") for which
it acts as agent. Each brokerage firm shall be responsible for disbursing funds
to the Certificate Owners that it represents. None of the Trustee, the
Certificate Registrar, the Depositor, the Master Servicer, the Special Servicer
or the REMIC Administrator shall have any responsibility therefor except as
otherwise provided by this Agreement or applicable law.
(h) Except as otherwise provided in Section 9.01, whenever the Trustee
expects that the final distribution with respect to any Class of Certificates
(determined without regard to any possible future reimbursement of any amount of
Collateral Support Deficit previously allocated to such Class of Certificates)
will be made on the next Distribution Date, the Trustee shall, no later than the
related Determination Date, mail to each Holder on such date of such Class of
Certificates a notice to the effect that:
(i) the Trustee expects that the final distribution with respect to
such Class of Certificates will be made on such Distribution Date but only
upon presentation and surrender of such Certificates at the offices of the
Certificate Registrar or such other location therein specified, and
(ii) no interest shall accrue on such Certificates from and after such
Distribution Date.
Any funds not distributed to any Holder or Holders of Certificates of
such Class on such Distribution Date because of the failure of such Holder or
Holders to tender their Certificates shall, on such date, be set aside and held
uninvested in trust and credited to the account or accounts of the appropriate
non-tendering Holder or Holders. If any Certificates as to which notice has been
given pursuant to this Section 4.01(h) shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation in order to
receive the final distribution with respect thereto. If within one year after
the second notice all such Certificates shall not have been surrendered for
cancellation, the Trustee, directly or through an agent, shall take such steps
to contact the remaining non-tendering Certificateholders concerning the
surrender of their Certificates as it shall deem appropriate. The costs and
expenses of holding such funds in trust and of contacting such
Certificateholders following the first anniversary of the delivery of such
second notice to the non-tendering Certificateholders shall be paid out of such
funds. No interest shall accrue or be payable to any Certificateholder on any
amount held in trust hereunder by the Trustee as a result of such
Certificateholder's failure to surrender its Certificate(s) for final payment
thereof in accordance with this Section 4.01(h).
<PAGE>
(i) Distributions in reimbursement of Collateral Support Deficit
previously allocated to the REMIC Regular Certificates shall be made in the
amounts and manner specified in Section 4.01(a) to the Holders of the respective
Class otherwise entitled to distributions of interest and principal on such
Class on the relevant Distribution Date; provided that all distributions in
reimbursement of Collateral Support Deficit previously allocated to a Class of
Certificates which has since been retired shall be to the prior Holders that
surrendered the Certificates of such Class upon retirement thereof and shall be
made by check mailed to the address of each such prior Holder last shown in the
Certificate Register. Notice of any such distribution to a prior Holder shall be
made in accordance with Section 11.05 at such last address. The amount of the
distribution to each such prior Holder shall be based upon the aggregate
Percentage Interest evidenced by the Certificates surrendered thereby. If the
check mailed to any such prior Holder is returned uncashed, then the amount
thereof shall be set aside and held uninvested in trust for the benefit of such
prior Holder, and the Trustee shall attempt to contact such prior Holder in the
manner contemplated by Section 4.01(h) as if such Holder had failed to surrender
its Certificates.
(j) For purposes of determining the outstanding Certificate Balance of
a Class of Certificates under any clause of Section 4.01(a) or the Lower-Tier
Principal Balance of any Class of Uncertificated Lower-Tier Interests under any
clause of Section 4.01(b) on any Distribution Date, the distributions of
principal to be made on each Class of Certificates or Uncertificated Lower-Tier
Interests, as the case may be, on such Distribution Date pursuant to Section
4.01(a) or Section 4.01(b) shall be deemed to have been made in the sequence set
forth in such Sections.
SECTION 4.02. Statements to Certificateholders; Collection Reports.
----------------------------------------------------
(a) On each Distribution Date, the Trustee shall forward by mail to
all of the Holders of each Class of Certificates and to the Master Servicer a
statement as to the distributions made on such Distribution Date setting forth:
(i) the amount of the distribution on such Distribution Date to the
Holders of such Class of Certificates in reduction of the Certificate
Balance thereof;
(ii) the amount of the distribution on such Distribution Date to the
Holders of such Class of Certificates allocable to Distributable
Certificate Interest;
(iii) the aggregate amount of P&I Advances made in respect of such
Distribution Date;
(iv) the aggregate amount of servicing compensation paid to the Master
Servicer during the Due Period for such Distribution Date;
<PAGE>
(v) the aggregate Stated Principal Balance of the Mortgage Loans and
any REO Loans outstanding immediately before and immediately after such
Distribution Date;
(vi) the number, aggregate principal balance, weighted average
remaining term to maturity and weighted average Mortgage Rate of the
Mortgage Loans as of the end of the Due Period for such Distribution Date;
(vii) the number and aggregate principal balance of Mortgage Loans (A)
delinquent one month, (B) delinquent two months, (C) delinquent three or
more months, and (D) as to which foreclosure proceedings have been
commenced;
(viii) the value of any REO Property included in the Trust Fund as of
the end of the Due Period for such Distribution Date, based on the most
recent Appraisal or valuation;
(ix) the Available Distribution Amount for such Distribution Date;
(x) the Accrued Certificate Interest in respect of such Class of
Certificates for such Distribution Date, separately identifying any portion
of any Appraisal Reduction Amounts for such Distribution Date allocated to
such Class of Certificates;
(xi) the amount of the distribution on such Distribution Date to the
Holders of such Class of Certificates allocable to Prepayment Premiums and
Yield Maintenance Charges;
(xii) the Pass-Through Rate for such Class of Certificates for such
Distribution Date and the next succeeding Distribution Date;
(xiii) the Scheduled Principal Distribution Amount and the Unscheduled
Principal Distribution Amount for such Distribution Date;
(xiv) the Certificate Balance of each Class of Certificates
immediately before and immediately after such Distribution Date, separately
identifying any reduction therein as a result of the allocation of any
Collateral Support Deficit on such Distribution Date;
(xv) the Certificate Factor for each Class of REMIC Regular
Certificates immediately following such Distribution Date;
(xvi) the amount of any Appraisal Reductions effected in connection
with such Distribution Date on a loan-by-loan basis, the total Appraisal
Reduction effected in connection with such Distribution Date, the total
Appraisal Reduction Amounts as of such Distribution Date on a loan-by-loan
basis, and the amount of any Appraisal Reduction Amounts distributed on
such Distribution Date to the Holders of such Class of Certificates
pursuant to Section 4.01(f)(i);
<PAGE>
(xvii) the amount of any remaining Class Unpaid Interest Shortfall for
such Class; and
(xviii) in the case of the Residual Certificates, the amount of any
distributions on such Certificates pursuant to Sections 4.01(a) and (b).
In the case of information furnished pursuant to clauses (i), (ii),
(xi) and (xviii) above, the amounts shall be expressed as a dollar amount in the
aggregate for all Certificates of each applicable Class and per Definitive
Certificate.
Within a reasonable period of time after the end of each calendar
year, the Trustee shall furnish to each Person who at any time during the
calendar year was a Holder of a Certificate a statement containing the
information set forth in clauses (i), (ii) and (xvi) above as to the applicable
Class, aggregated for such calendar year or applicable portion thereof during
which such person was a Certificateholder, together with such other information
as the Trustee determines to be necessary to enable Certificateholders to
prepare their tax returns for such calendar year. Such obligation of the Trustee
shall be deemed to have been satisfied to the extent that substantially
comparable information shall be provided by the Trustee pursuant to any
requirements of the Code as from time to time are in force.
On each Distribution Date, the Trustee shall forward to the Depositor,
to each Rating Agency, to each Holder of a Residual Certificate, to the Master
Servicer, to the Special Servicer, to the REMIC Administrator and any other
party that the Depository may designate, a copy of the reports forwarded to the
Holders of the REMIC Regular Certificates on such Distribution Date.
(b) With respect to each Distribution Date, the Master Servicer shall
furnish to the Trustee, the Depositor and each Rating Agency (i) a preliminary
Collection Report no later than the related Determination Date, and (ii) an
accurate and complete Collection Report no later than the related P&I Advance
Date, in each case containing the following information:
(i) the information to be provided to Certificateholders on such
Distribution Date pursuant to clauses (iii) through (viii) of Section
4.02(a); and
(ii) such other information in the Master Servicer's possession
regarding the Mortgage Loans and any REO Properties as the Trustee may
reasonably request to perform its duties hereunder.
The Collection Report may be in the form of more than one report (if
necessary and appropriate), and shall be provided by the Master Servicer to the
Trustee in such format(s) as the Master Servicer and the Trustee may agree.
Neither the Trustee nor the Depositor shall have any obligation to recompute,
verify or recalculate the information provided thereto by the Master Servicer in
the Collection Report. Unless the Trustee has actual knowledge that any
<PAGE>
Collection Report contains erroneous information, the Trustee is authorized to
rely thereon in calculating and making distributions to Certificateholders in
accordance with Section 4.01, preparing the statements to Certificateholders
required by Section 4.02(a), and allocating Collateral Support Deficit to the
Certificates in accordance with Section 4.04.
(c) As soon as reasonably practicable, upon the written request of any
Certificateholder, the Trustee shall provide the requesting Certificateholder
with such information that is in the Trustee's possession or can reasonably be
obtained by the Trustee as is requested by such Certificateholder, for purposes
of satisfying applicable reporting requirements under Rule 144A under the
Securities Act. In addition, pursuant to Section 8.12(b), the Master Servicer
shall provide a financial market publisher (which shall initially be Bloomberg,
L.P.) and shall make available through the Internet, certain current information
with respect to the Mortgaged Properities.
(d) Based upon reports, documents and other information provided to
the Trustee by the Master Servicer pursuant to this Agreement, the Trustee shall
file with the Commission, in respect of the Trust Fund, the Uncertificated
Lower-Tier Interests and the Certificates, copies of the information, documents
and other reports (or copies of such portions of any of the foregoing as the
Commission may from time to time by rules and regulations prescribe) required to
be filed with the Commission pursuant to Section 13 or 15(d) of the Exchange Act
(including Distribution Date statements issued pursuant to Section 4.02(a) by
means of Current Report on Form 8-K and an Annual Report on Form 10-K). In the
event that the Depositor determines that electronic filing through the EDGAR
System is required for any reports, the Depositor may either (x) request that
the Trustee process such filing, or (y) cause the filing to be processed by the
Depositor or its designee upon receipt from the Trustee of the reports,
documents and other information described above. Notwithstanding the foregoing,
the Depositor shall file with the Commission, within fifteen days after the
Closing Date, a Current Report on Form 8-K together with this Agreement.
SECTION 4.03. P&I Advances.
------------
(a) On or before 12:30 p.m., New York City time, on each P&I Advance
Date, the Master Servicer shall either (i) deposit into the Lower-Tier
Distribution Account from its own funds an amount equal to the aggregate amount
of P&I Advances, if any, to be made in respect of the related Distribution Date,
(ii) apply amounts held in the Certificate Account for future distribution to
Certificateholders in subsequent months in discharge of any such obligation to
make P&I Advances, or (iii) make P&I Advances in the form of any combination of
(i) and (ii) aggregating the total amount of P&I Advances to be made. Any
amounts held in the Certificate Account for future distribution and so used to
make P&I Advances shall be appropriately reflected in the Master Servicer's
records and replaced by the Master Servicer by deposit in the Certificate
Account on or before the next succeeding P&I Advance Determination Date (to the
extent not previously replaced through the deposit of Late Collections of the
delinquent principal and/or interest in respect of which such P&I Advances were
made). The Master Servicer shall notify the Trustee by a certificate of the
Servicing Officer, of (i) the aggregate amount of P&I Advances for a
Distribution Date, and (ii) the amount of any Nonrecoverable Advances for such
Distribution Date, on or before three Business Days prior to such Distribution
Date. If the Master Servicer fails to make a P&I Advance by 12:30 p.m., New York
City time, on any P&I Advance Date, an Event of Default as set forth in clause
(a)(i) of Section 7.01 shall occur and the Trustee shall make such P&I Advance
pursuant to Section 7.05.
(b) Subject to Section 4.03(c) and (e) below, the aggregate
amount of P&I Advances to be made by the Master Servicer with respect to any
Distribution Date shall equal the aggregate of: (i) all Monthly Payments (in
each case, net of related Servicing Fees) other than Balloon Payments, that were
due during the related Due Period and delinquent as of the close of business on
the Business Day preceding the related P&I Advance Date; and (ii) with respect
to each Mortgage Loan as to which the related Balloon Payment was due during or
prior to the related Due Period and was delinquent as of the close of business
on the Business Day preceding the related P&I Advance Date (including any REO
Loan as to which the Balloon Payment would have been past due), an amount equal
to the Assumed Scheduled Payment therefor. Subject to subsection (c) below, the
obligation of the Master Servicer to make such P&I Advances is mandatory, and
with respect to any Mortgage Loan or REO Loan, shall continue until the
Distribution Date on which the proceeds, if any, received in connection with a
Liquidation Event with respect thereto are to be distributed.
<PAGE>
(c) Notwithstanding anything herein to the contrary, no P&I Advance
shall be required to be made hereunder if such P&I Advance would, if made,
constitute a Nonrecoverable P&I Advance.
(d) In connection with the recovery of any P&I Advance out of the
Certificate Account pursuant to Section 3.05(a), the Master Servicer shall be
entitled to pay itself or the Trustee, as the case may be, out of any amounts
then on deposit in the Certificate Account, interest at the Reimbursement Rate
in effect from time to time, accrued on the amount of such P&I Advance from the
date made to but not including the date of reimbursement. The Master Servicer
shall reimburse itself or the Trustee, as the case may be, for any outstanding
P&I Advance as soon as practicably possible after funds available for such
purpose are deposited in the Certificate Account.
(e) Notwithstanding the foregoing, (i) the Master Servicer shall not
be required to make an advance for Penalty Charges, Prepayment Premiums or Yield
Maintenance Charges and (ii) the amount required to be advanced in respect of
delinquent Monthly Payments or Assumed Scheduled Payments on Mortgage Loans that
have been subject to an Appraisal Reduction Event will equal with respect to any
Distribution Date the amount that would be required to be advanced by the Master
Servicer without giving effect to the Appraisal Reduction less any Appraisal
Reduction Amount for such Distribution Date.
SECTION 4.04. Allocation of Collateral Support Deficit.
----------------------------------------
(a) On each Distribution Date, immediately following the distributions
to be made on such date pursuant to Section 4.01, the Trustee shall calculate
the amount, if any, by which (i) the aggregate Stated Principal Balance of the
Mortgage Loans and any REO Loans expected to be outstanding immediately
following such Distribution Date, is less than (ii) the then aggregate
Certificate Balance of the REMIC Regular Certificates after giving effect to
distributions of principal on such Distribution Date (any such deficit, the
<PAGE>
"Collateral Support Deficit"). Any allocation of Collateral Support Deficit to a
Class of REMIC Regular Certificates shall be made by reducing the Certificate
Balance thereof by the amount so allocated. Any Collateral Support Deficit
allocated to a Class of REMIC Regular Certificates shall be allocated among the
respective Certificates of such Class in proportion to the Percentage Interests
evidenced thereby. The allocation of Collateral Support Deficit shall constitute
an allocation of losses and other shortfalls experienced by the Trust Fund.
Reimbursement of previously allocated Collateral Support Deficit will not
constitute distributions of principal for any purpose and will not result in an
additional reduction in the Certificate Balance of the Class of Certificates in
respect of which any such reimbursement is made.
(b) On each Distribution Date, the Certificate Balances of the REMIC
Regular Certificates will be reduced without distribution as a write-off to the
extent of any Collateral Support Deficit, if any, allocable to such Certificates
with respect to such Distribution Date. Any such write-off shall be allocated
among the respective Certificates as follows: first, to the Class UR
Certificates; second, to the Class H Certificates; third, to the Class G
Certificates; fourth, to the Class F Certificates; fifth, to the Class E
Certificates; sixth, to the Class D Certificates; seventh, to the Class C
Certificates; eighth, to the Class B Certificates, in each case, until the
remaining Certificate Balance of each such Class of Certificates has been
reduced to zero; and ninth, to the Class A-1 Certificates, the Class A-2
Certificates and the Class A-3 Certificates, pro rata, until the remaining
Certificate Balances of such Classes of Certificates have been reduced to zero.
(c) With respect to any Distribution Date, any Collateral Support
Deficit allocated pursuant to Section 4.04(b) with respect to such Distribution
Date shall reduce the Lower-Tier Principal Amounts of the Uncertificated
Lower-Tier Interests as a write-off and shall be allocated as follows: (A) as
between (i) the Class LA-1, Class LA-2, Class LA-3, Class LB, Class LC, Class
LD, Class LE, Class LF, Class LG, Class LH and Class LUR Uncertificated
Interests and (ii) the Class LWAC Uncertificated Interest, in the proportions in
which principal is distributed thereto as set forth in Section 4.01(b)(ii) and
(B) as among the Class LA-1, Class LA-2, Class LA-3, Class LB, Class LC, Class
LD, Class LE, Class LF, Class LG, Class LH and Class LUR Uncertificated
Interests, in the same priority as its Class of Related Certificates pursuant to
Section 4.04(b).
<PAGE>
SECTION 4.05. Appraisal Reductions.
--------------------
(a) The aggregate Appraisal Reduction will generally be allocated on
each Distribution Date, for purposes of determining Distributable Certificate
Interest on such Distribution Date, to the Certificate Balance of the Class UR,
Class H, Class G, Class F, Class E, Class D, Class C and Class B Certificates,
in that order, up to the amount of their respective Certificate Balances, as
well as for purposes of determining the identity of the Controlling Class and
Voting Rights and the amount of P&I Advances with respect to the related
Mortgage Loan. For so long as any more senior Class of Certificates is
outstanding, the amount of Accrued Certificate Interest on such Distribution
Date for each Class of Certificates to which an Appraisal Reduction is allocated
on such Distribution Date will be reduced, for purposes of determining the
Distributable Certificate Interest with respect to such Class, by the amount of
interest accrued at the applicable Pass-Through Rate on the portion of the
Certificate Balance of such Class equal to such Appraisal Reduction allocated to
such Class or Classes for such Distribution Date. On any Distribution Date, an
Appraisal Reduction that otherwise would be allocated to a Class of Certificates
will be allocated to the next most subordinate Class to the extent that the
Distributable Certificate Interest on such Distribution Date for such Class of
Certificates (prior to taking the Appraisal Reduction Amount into account) is
less than the Appraisal Reduction Amount for such Distribution Date. On each
Distribution Date the Appraisal Reduction Amount will be added to the
Certificate Balances of the related Class UR, Class H, Class G, Class F, Class
E, Class D, Class C and Class B Certificates, as the case may be, and, with
respect to any affected Mortgage Loan, the related Appraisal Reduction Amount
will be included in the Principal Distribution Amount for such Distribution
Date. Notwithstanding any of the foregoing, the total amount of Appraisal
Reduction Amount so added to the Certificate Balances of each such Class of
Subordinate Certificates and the total amount of Appraisal Reduction Amount
included in the Principal Distribution Amount shall not exceed the Distributable
Certificate Interest received with respect to the related Mortgage Loan prior to
the receipt of Liquidation Proceeds or any other final payment thereon that
would otherwise be distributed on such Subordinate Certificate.
(b) With respect to any Distribution Date, any Appraisal
Reduction Amount with respect to such Distribution Date allocated pursuant to
Section 4.05(a) shall be allocated in reduction of the amount of interest
distributable to the Uncertificated Lower-Tier Interests and as a distribution
of principal in reduction of the Lower-Tier Principal Amount of the
Uncertificated Lower-Tier Interests as follows: (A) as between (i) the Class
LUR, Class LH, Class LG, Class LF, Class LE, Class LD, Class LC and Class LB
Uncertificated Interests, and (ii) the Class LWAC Uncertificated Interest, in
the proportions in which interest is distributed thereto as set forth in Section
4.01(b)(ii) and, (B) as among the Class LUR, Class LH, Class LG, Class LF, Class
LE, Class LD, Class LC and Class LB Uncertificated Interests, in the same
priority as its Class of Related Certificates as set forth in Section 4.05(a).
On each Distribution Date, to the extent provided in Section 4.05(a), the
Appraisal Reduction Amount will be added to the Lower-Tier Principal Amount of
the related Class LUR, Class LH, Class LG, Class LF, Class LE, Class LD, Class
LC, Class LB and Class LWAC Uncertificated Interests in the same manner as the
interest thereon was reduced pursuant to the preceding sentence.
[End of Article IV]
<PAGE>
ARTICLE V
THE CERTIFICATES
SECTION 5.01. The Certificates.
----------------
(a) The Certificates will be substantially in the respective forms
annexed hereto as Exhibits A-1 through and including A-14. The Certificates will
be issuable in registered form only; provided, however, that in accordance with
Section 5.03 beneficial ownership interests in the REMIC Regular Certificates
shall initially be held and transferred through the book-entry facilities of the
Depository. The Class R and Class LR Certificates will each be issuable in one
or more registered, definitive physical certificates (each, a "Definitive
Certificate") substantially in the form of Certificates of each Class and with
such applicable legends as are set forth in the Exhibits hereto corresponding to
such Class. Each Certificate will share ratably in all rights of the related
Class. The Class A Certificates will be issuable only in minimum Denominations
of authorized initial Certificate Balance of not less than $10,000 and in
integral multiples of $1,000 in excess thereof. The Class IO Certificates will
be issuable only in minimum Denominations of authorized initial Notional Amount
of not less than $1,000,000 and in integral multiples of $1,000 in excess
thereof. The Subordinate Certificates will be issuable only in minimum
Denominations of authorized initial Certificate Balance or Notional Amount, as
applicable, of not less than $250,000, and in integral multiples of $1,000 in
excess thereof. If the Original Certificate Balance or initial Notional Amount,
as applicable, of any Class does not equal an integral multiple of $1,000, then
a single additional Certificate of such Class may be issued in a minimum
denomination of authorized initial Certificate Balance or initial Notional
Amount, as applicable, that includes the excess of (i) the Original Certificate
Balance or initial Notional Amount, as applicable, of such Class over (ii) the
largest integral multiple of $1,000 that does not exceed such amount. The Class
R and Class LR Certificates will be issuable only in one or more Definitive
Certificates in denominations representing Percentage Interests of not less than
20%. With respect to any Certificate or any beneficial interest in a
Certificate, the "Denomination" thereof shall be (i) the amount (A) set forth on
the face thereof or (B) in the case of any Book-Entry Certificate, set forth on
a schedule attached thereto or, in the case of any beneficial interest in a
Book-Entry Certificate, the product of the Percentage Interest represented by
such beneficial interest and the Denomination of the related Book-Entry
Certificate, (ii) expressed in terms of initial Certificate Balance or Notional
Amount, as applicable, and (iii) be in an authorized denomination, as set forth
above. The Book-Entry Certificates will be issued as one or more certificates
registered in the name of a nominee designated by the Depository, and
Certificate Owners will hold interests in the Book-Entry Certificates through
the book-entry facilities of the Depository in the minimum Denominations and
aggregate Denominations as set forth in the above. No Certificate Owner of a
Book-Entry Certificate of any Class thereof will be entitled to receive a
Definitive Certificate representing its interest in such Class, except as
provided in Section 5.03 herein. Unless and until Definitive Certificates are
issued in respect of a Class of Book-Entry Certificates, beneficial ownership
interests in such Class of Certificates will be maintained and transferred on
the book-entry records of the Depository and Depository Participants, and all
references to actions by Holders of such Class of Certificates will refer to
action taken by the Depository upon instructions received from the related
registered Holders of Certificates through the Depository Participants in
accordance with the Depository's procedures and, except as otherwise set forth
herein, all references herein to payments, notices, reports and statements to
Holders of such Class of Certificates will refer to payments, notices, reports
and statements to the Depository or its nominee as the registered Holder
thereof, for distribution to the related registered Holders of Certificates
through the Depository Participants in accordance with the Depository's
procedures.
<PAGE>
(b) The Certificates shall be executed by manual or facsimile
signature on behalf of the Trustee in its capacity as trustee hereunder by an
authorized officer. Certificates bearing the manual or facsimile signatures of
individuals who were at any time the authorized officers of the Trustee shall be
entitled to all benefits under this Agreement, subject to the following
sentence, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Certificates
or did not hold such offices at the date of such Certificates. No Certificate
shall be entitled to any benefit under this Agreement, or be valid for any
purpose, however, unless there appears on such Certificate a certificate of
authentication substantially in the form provided for herein executed by the
Certificate Registrar by manual signature, and such certificate of
authentication upon any Certificate shall be conclusive evidence, and the only
evidence, that such Certificate has been duly authenticated and delivered
hereunder. All Certificates shall be dated the date of their authentication.
(c) Any of the Certificates may be issued with appropriate insertions,
omissions, substitutions and variations, and may have imprinted or otherwise
reproduced thereon such legend or legends, not inconsistent with the provisions
of this Agreement, as may be required to comply with any law or with rules or
regulations pursuant thereto, or with the rules of any securities market in
which the Certificates are admitted to trading, or to conform to general usage.
SECTION 5.02. Registration of Transfer and Exchange of Certificates.
-----------------------------------------------------
(a) At all times during the term of this Agreement, there shall be
maintained at the office of the Certificate Registrar a Certificate Register in
which, subject to such reasonable regulations as the Certificate Registrar may
prescribe, the Certificate Registrar shall provide for the registration of
Certificates and of transfers and exchanges of Certificates as herein provided.
The Trustee is hereby initially appointed (and hereby agrees to act in
accordance with the terms hereof) as Certificate Registrar for the purpose of
registering Certificates and transfers and exchanges of Certificates as herein
provided. The Certificate Registrar may appoint, by a written instrument
delivered to the Depositor, the Master Servicer, the Special Servicer and the
REMIC Administrator, any other bank or trust company to act as Certificate
Registrar under such conditions as the predecessor Certificate Registrar may
prescribe, provided that the predecessor Certificate Registrar shall not be
relieved of any of its duties or responsibilities hereunder by reason of such
appointment. If the Trustee resigns or is removed in accordance with the terms
hereof, the successor trustee shall immediately succeed to its predecessor's
duties as Certificate Registrar. The Depositor, the Master Servicer, the Special
Servicer and the REMIC Administrator shall have the right to inspect the
Certificate Register or to obtain a copy thereof at all reasonable times, and to
rely conclusively upon a certificate of the Certificate Registrar as to the
information set forth in the Certificate Register. The names and addresses of
all Certificateholders and the names and addresses of the transferees of any
Certificates shall be registered in the Certificate Register; provided, however,
in no event shall the Certificate Registrar be required to maintain in the
Certificate Register the names of Certificate Owners. The Person in whose name
any Certificate is so registered shall be deemed and treated as the sole owner
and Holder thereof for all purposes of this Agreement and the Certificate
Registrar, the Master Servicer, the Trustee, the Special Servicer and any agent
of any of them shall not be affected by any notice or knowledge to the contrary.
A Definitive Certificate is transferable or exchangeable only upon the surrender
of such Certificate to the Certificate Registrar at the Corporate Trust Office
together with an assignment and transfer (executed by the Holder or his duly
authorized attorney), subject to the requirements of Sections 5.02(b), (c) and
(d).
<PAGE>
(b) No transfer of any Non-Registered Certificate shall be made unless
that transfer is made pursuant to an effective registration statement under the
Securities Act, and effective registration or qualification under applicable
state securities laws, or is made in a transaction which does not require such
registration or qualification. If a transfer (other than one by the Depositor to
an Affiliate thereof) is to be made in reliance upon an exemption from the
Securities Act, and under the applicable state securities laws, then either: (i)
the Certificate Registrar shall require that the transferee deliver to the
Certificate Registrar an investment representation letter (the "Investment
Representation Letter") substantially in the form of Exhibit C attached hereto,
which Investment Representation Letter shall certify, among other things, that
the transferee is an institutional "accredited investor" as defined in Rule
501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act (an
"Institutional Accredited Investor") or a "qualified institutional buyer" as
defined in Rule 144A under the Securities Act (a "Qualified Institutional
Buyer"), and the Certificate Registrar may also require that the transferee
deliver to the Certificate Registrar an Opinion of Counsel if such transferee is
not a Qualified Institutional Buyer; or (ii) if the certifications described in
the preceding clause (i) cannot be provided (A) the Certificate Registrar shall
require an Opinion of Counsel reasonably satisfactory to the Certificate
Registrar and the Depositor that such transfer may be made pursuant to an
exemption, describing the applicable exemption and the basis therefor, from
registration or qualification under the Securities Act, applicable state
securities laws and other relevant laws, which Opinion of Counsel shall not be
an expense of the Trust Fund, the Certificate Registrar, the Depositor or the
Trustee, and (B) the Certificate Registrar shall require the transferor to
execute a certification in form and substance satisfactory to the Certificate
Registrar setting forth the facts surrounding such transfer; provided, however,
that a transfer of a Non-Registered Certificate of any such Class may be made to
a trust if the transferor provides to the Trustee a certification that interests
in such trust may only be transferred subject to requirements substantially to
the effect set forth in this Section 5.02. The Trustee will furnish, or cause to
be furnished, upon the request of any Holder of Non-Registered Certificates, to
a prospective purchaser of such Non-Registered Certificates who is a Qualified
Institutional Buyer, such information as is specified in paragraph (d)(4) of
<PAGE>
Rule 144A with respect to the Trust Fund, unless, at the time of such request,
the entity with respect to which such information is to be provided is subject
to the reporting requirements of Section 15(d) of the Exchange Act. None of the
Depositor, the Trustee or the Certificate Registrar is obligated to register or
qualify any Class of Non-Registered Certificates under the Securities Act or any
other securities law or to take any action not otherwise required under this
Agreement to permit the transfer of any Non-Registered Certificate without
registration or qualification. Any Holder of a Non-Registered Certificate
desiring to effect such a transfer shall, and does hereby agree to, indemnify
the Depositor, the Trustee and the Certificate Registrar against any liability
that may result if the transfer is not so exempt or is not made in accordance
with such federal and state laws. Unless the Trustee determines otherwise in
accordance with applicable law and the rules and procedures of, or applicable
to, the Depository (the "Depository Rules"), transfers of a beneficial interest
in a Book-Entry Certificate representing an interest in a Non-Registered
Certificate that is not rated in one of the top four categories by a nationally
recognized statistical rating organization to (i) an Institutional Accredited
Investor will require delivery in the form of a Definitive Certificate and the
Certificate Registrar shall register such transfer only upon compliance with the
foregoing provisions of this Section 5.02(b) or (ii) a Qualified Institutional
Buyer may only be effectuated by means of an "SRO Rule 144A System" approved for
such purpose by the Commission.
Unless the Non-Registered Certificates have been registered under the
Securities Act, each of the Non-Registered Certificates shall bear a legend
substantially to the following effect:
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"),
OR ANY STATE SECURITIES LAWS. NEITHER THIS CERTIFICATE NOR
ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE
DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS
SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO,
REGISTRATION UNDER THE SECURITIES ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF
AGREES NOT TO OFFER, SELL OR OTHERWISE TRANSFER SUCH
CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL APPLICABLE STATE
SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT,
(B) FOR SO LONG AS THIS CERTIFICATE IS ELIGIBLE FOR RESALE
PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE
144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A
"QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (C) TO AN
INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF
RULE 501 (a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE
SECURITIES ACT IN A TRANSACTION EXEMPT FROM THE REGISTRATION
REQUIREMENTS UNDER THE SECURITIES ACT, OR (D) PURSUANT TO
ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT, SUBJECT IN EACH OF THE
FOREGOING CASES TO THE COMPLETION AND DELIVERY BY THE
TRANSFEROR TO THE TRUSTEE OF A CERTIFICATE OF TRANSFER IN
THE FORM APPEARING ON THE LAST PAGE OF THIS CERTIFICATE.
THE INITIAL INVESTOR IN THIS CERTIFICATE, AND EACH
SUBSEQUENT PURCHASER OF THIS CERTIFICATE, BY PURCHASING THIS
CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO HAVE AGREED
TO COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN
THE POOLING AND SERVICING AGREEMENT. A TRANSFEREE IS ALSO
REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER
SUBSTANTIALLY IN THE FORM OF EXHIBIT C TO THE POOLING AND
SERVICING AGREEMENT IF SUCH TRANSFEREE IS A QUALIFIED
INSTITUTIONAL BUYER OR AN ACCREDITED INSTITUTIONAL INVESTOR,
AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL IF
SUCH TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER
WITHIN THE MEANING OF RULE 144A.
<PAGE>
(c) With respect to the Subordinate Certificates and Residual
Certificates, no sale, transfer, pledge or other disposition by any Holder of
any such Certificate shall be made unless the Trustee shall have received either
(i) a representation letter from the proposed purchaser or transferee of such
Certificate substantially in the form of Exhibit G attached hereto, to the
effect that such proposed purchaser or transferee is not (A)(1) an employee
benefit plan subject to the fiduciary responsibility provisions of ERISA, (2) a
plan subject to Section 4975 of the Code or (3) any governmental plan, as
defined in Section 3(32) of ERISA, subject to any federal, state or local law
("Similar Law") which is, to a material extent, similar to the foregoing
provisions of ERISA or the Code (a "Plan"), (B) a collective investment fund in
which such Plans are invested, (C) an insurance company using assets of separate
accounts or general accounts which include assets of Plans (or which are deemed
pursuant to ERISA or any Similar Law to include assets of Plans) or (D) a person
or entity acting on behalf of a Plan or using the assets of a Plan, other than
an insurance company using assets of its general account under circumstances
whereby the purchase of Subordinate Certificates or Residual Certificates by
such insurance company (1) would not constitute a prohibited transaction within
the meaning of Section 406 or 407 of ERISA, Section 4975 of the Code, or a
materially similar characterization under any Similar Law or (2) satisfies a
"prohibited transaction exemption" ("PTE"), such as Section III of PTE 95-60 or
(ii) if such Certificate is presented for registration in the name of a
purchaser or transferee that is any of the foregoing an Opinion of Counsel in
form and substance satisfactory to the Trustee and the Depositor to the effect
that the acquisition and holding of such Certificate by such purchaser or
transferee (without regard to the identity or nature of the other Holders of
Certificates of any Class) will not constitute or result in a "prohibited
transaction" within the meaning of Section 406 or 407 of ERISA or Section 4975
of the Code, and will not subject the Trustee, the Certificate Registrar, the
Master Servicer, the Special Servicer, the Extension Adviser, the Underwriter or
the Depositor to any obligation or liability under ERISA or Section 4975 of the
Code. The Certificate Registrar shall not register the sale, transfer, pledge or
other disposition of any such Certificate unless the Certificate Registrar has
received notification from the Trustee that it has received either the
representation letter described in clause (i) above or the Opinion of Counsel
described in clause (ii) above. The costs of any of the foregoing representation
letters or Opinions of Counsel shall not be borne by any of the Depositor, the
Master Servicer, the Special Servicer, the Trustee or the Trust Fund. Each
Certificate Owner of a Subordinate Certificate shall be deemed to represent that
it is not a Person specified in clauses (A), (B), (C) or (D) above. Any
transfer, sale, pledge or other disposition of any such Certificates that would
constitute or result in a prohibited transaction under Section 406 of ERISA or
Section 4975 of the Code or otherwise violate the provisions of this Section
5.02(c) shall be deemed absolutely null and void ab initio, to the extent
permitted under applicable law.
So long as any of the Class of Certificates remains outstanding, the
Master Servicer will make available, or cause to be made available, upon
request, to any Holder and any Person to whom any such Certificate of any such
Class of Certificates may be offered or sold, transferred, pledged or otherwise
disposed of by such Holder, information with respect to the Master Servicer, the
Special Servicer or the Mortgage Loans necessary to the provision of an Opinion
of Counsel described in this Section 5.02(c).
<PAGE>
(d) (i) Each Person who has or who acquires any Ownership Interest in
a Residual Certificate shall be deemed by the acceptance or acquisition of
such Ownership Interest to have agreed to be bound by the following
provisions and to have irrevocably authorized the Trustee under clause (ii)
below to deliver payments to a Person other than such Person. The rights of
each Person acquiring any Ownership Interest in a Residual Certificate are
expressly subject to the following provisions:
(A) No Person holding or acquiring any Ownership Interest in a
Residual Certificate shall be a Disqualified Organization or agent
thereof (including a nominee, middleman or similar person) (an
"Agent") or a Non-U.S. Person and shall promptly notify the Master
Servicer, the Trustee and the REMIC Administrator of any change or
impending change to such status.
(B) In connection with any proposed Transfer of any Ownership
Interest in a Residual Certificate, the Certificate Registrar shall
require delivery to it, and no Transfer of any Residual Certificate
shall be registered until the Certificate Registrar receives, an
affidavit substantially in the form attached hereto as Exhibit D-1 (a
"Transfer Affidavit") from the proposed Transferee, in form and
substance satisfactory to the Certificate Registrar, representing and
warranting, among other things, that such Transferee is not a
Disqualified Organization or Agent thereof or a Non-U.S. Person, and
that it has reviewed the provisions of this Section 5.02(d) and agrees
to be bound by them.
(C) Notwithstanding the delivery of a Transfer Affidavit by a
proposed Transferee under clause (B) above, if the Certificate
Registrar has actual knowledge that the proposed Transferee is a
Disqualified Organization, an Agent thereof or a Non-U.S. Person, no
Transfer of an Ownership Interest in a Residual Certificate to such
proposed Transferee shall be effected.
(D) Each Person holding or acquiring any Ownership Interest in a
Residual Certificate shall agree (1) to require a Transfer Affidavit
from any prospective Transferee to whom such Person attempts to
transfer its Ownership Interest in such Residual Certificate and (2)
not to transfer its Ownership Interest in such Residual Certificate
unless it provides to the Certificate Registrar a letter substantially
in the form attached hereto as Exhibit D-2 (a "Transferor Letter")
certifying that, among other things, it has no actual knowledge that
such prospective Transferee is a Disqualified Organization, an Agent
thereof or a Non-U.S. Person.
(ii) If any purported Transferee shall become a Holder of a Residual
Certificate in violation of the provisions of this Section 5.02(d), then
the last preceding Holder of such Residual Certificate that was in
compliance with the provisions of this Section 5.02(d) shall be restored,
to the extent permitted by law, to all rights as Holder thereof retroactive
to the date of registration of such Transfer of such Residual Certificate.
None of the Trustee, the Master Servicer, the REMIC Administrator or the
Certificate Registrar shall be under any liability to any Person for any
registration of Transfer of a Residual Certificate that is in fact not
permitted by this Section 5.02(d) or for making any payments due on such
Certificate to the Holder thereof or for taking any other action with
respect to such Holder under the provisions of this Agreement.
<PAGE>
(iii) The REMIC Administrator shall make available to the Internal
Revenue Service and those Persons specified by the REMIC Provisions, upon
written request of the Trustee, all information necessary to compute any
tax imposed as a result of the Transfer of an Ownership Interest in a
Residual Certificate to any Person who is a Disqualified Organization or
Agent thereof, including the information described in Treasury regulations
sections 1.860D-1(b)(5) and 1.860E-2(a)(5) with respect to the "excess
inclusions" of such Residual Certificate.
(e) Subject to the restrictions on transfer and exchange set forth in
this Section 5.02 the Holder of any Definitive Certificate may transfer or
exchange the same in whole or in part (with a Denomination equal to any
authorized denomination) by surrendering such Certificate at the Corporate Trust
Office or at the office of any successor Certificate Registrar or transfer agent
appointed by the Certificate Registrar, together with an instrument of
assignment or transfer (executed by the Holder or its duly authorized attorney),
in the case of transfer, and a written request for exchange in the case of
exchange. Subject to the restrictions on transfer set forth in this Section 5.02
and Depository Rules, any Certificate Owner may cause the Depository to notify
the Certificate Registrar in writing of a request for transfer or exchange of
such Certificate Owner's beneficial interest in a Book-Entry for a Definitive
Certificate or Certificates. Following a proper request for transfer or
exchange, the Certificate Registrar shall, within five Business Days of such
request if made at such Corporate Trust Office, or within ten Business Days if
made at the office of a transfer agent (other than the Certificate Registrar),
execute and deliver at such Corporate Trust Office or at the office of such
transfer agent, as the case may be, to the transferee (in the case of transfer)
or Holder (in the case of exchange) or send by first class mail (at the risk of
the transferee in the case of transfer or Holder in the case of exchange) to
such address as the transferee or Holder, as applicable, may request, a
Definitive Certificate or Certificates, as the case may require, for a like
aggregate Denomination and in such Denomination or Denominations as may be
requested. The presentation for transfer or exchange of any Definitive
Certificate shall not be valid unless made at the Corporate Trust Office or at
the office of a transfer agent by the registered Holder in person, or by a duly
authorized attorney-in-fact. The Certificate Registrar may decline to accept any
request for an exchange or registration of transfer of any Certificate during
the period of 15 days preceding any Distribution Date.
(f) In the event a Responsible Officer of the Certificate Registrar
becomes aware that a Definitive Certificate (other than a Definitive Certificate
issued in exchange for a Certificate representing an interest in the Class A-1,
Class A-2, Class A-3, Class B, Class C, Class D or Class E Certificates) or a
beneficial interest in a Book-Entry Certificate representing a Non-Registered
Certificate is being held by or for the benefit of a Person who is not an
Eligible Investor, or that such holding is unlawful under the laws of a relevant
jurisdiction, then the Certificate Registrar shall have the right to void such
transfer, if permitted under applicable law, or to require the investor to sell
such Definitive Certificate or beneficial interest in such Book-Entry
Certificate to an Eligible Investor within 14 days after notice of such
determination and each Certificateholder by its acceptance of a Certificate
authorizes the Certificate Registrar to take such action.
<PAGE>
(g) The Certificate Registrar shall be required to provide notice to
the Master Servicer, the Special Servicer, the REMIC Administrator and the
Depositor of each transfer of a Certificate and to provide each such Person with
an updated copy of the Certificate Register on or about January 1 and July 1 of
each year, commencing July 1, 1996.
(h) No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in this Section 5.02 except as provided below. In
connection with any transfer to an Institutional Accredited Investor, the
transferor shall reimburse the Trust Fund for any costs (including the cost of
the Certificate Registrar's counsel's review of the documents and any legal
opinions, submitted by the transferor or transferee to the Certificate Registrar
as provided herein) incurred by the Certificate Registrar in connection with
such transfer. With respect to any transfer or exchange of any Certificate, the
Certificate Registrar may require payment by each transferor of a sum sufficient
to cover any tax, expense or other governmental charge payable in connection
with any such transfer or exchange.
(i) All Certificates surrendered for transfer and exchange shall be
physically canceled by the Certificate Registrar, and the Certificate Registrar
shall hold such canceled Certificates in accordance with its standard
procedures.
SECTION 5.03. Book-Entry Certificates.
-----------------------
(a) The REMIC Regular Certificates shall initially be issued as one or
more Certificates registered in the name of the Depository or its nominee and,
except as provided in subsection (c) below, transfer of such Certificates may
not be registered by the Certificate Registrar unless such transfer is to a
successor Depository that agrees to hold such Certificates for the respective
Certificate Owners with Ownership Interests therein. Such Certificate Owners
shall hold and transfer their respective Ownership Interests in and to such
Certificates through the book-entry facilities of the Depository and, except as
provided in subsection (c) below, shall not be entitled to Definitive
Certificates in respect of such Ownership Interests. All transfers by
Certificate Owners of their respective Ownership Interests in the Book-Entry
Certificates shall be made in accordance with the procedures established by the
Depository Participant or brokerage firm representing such Certificate Owner.
Each Depository Participant shall only transfer the Ownership Interests in the
Book-Entry Certificates of Certificate Owners it represents or of brokerage
firms for which it acts as agent in accordance with the Depository's normal
procedures.
(b) The Trustee, the Master Servicer, the Special Servicer, the REMIC
Administrator, the Depositor and the Certificate Registrar may for all purposes,
including the making of payments due on the Book-Entry Certificates, deal with
the Depository as the authorized representative of the Certificate Owners with
respect to such Certificates for the purposes of exercising the rights of
Certificateholders hereunder. The rights of Certificate Owners with respect to
the Book-Entry Certificates shall be limited to those established by law and
agreements between such Certificate Owners and the Depository Participants and
brokerage firms representing such Certificate Owners. Multiple requests and
directions from, and votes of, the Depository as Holder of the Book-Entry
Certificates with respect to any particular matter shall not be deemed
inconsistent if they are made with respect to different Certificate Owners. The
Trustee may establish a reasonable record date in connection with solicitations
of consents from or voting by Certificateholders and shall give notice to the
Depository of such record date.
<PAGE>
(c) If (i)(A) the Depositor advises the Trustee and the Certificate
Registrar in writing that the Depository is no longer willing or able to
properly discharge its responsibilities with respect to the Book-Entry
Certificates, and (B) the Depositor is unable to locate a qualified successor,
or (ii) the Depositor at its option advises the Trustee and the Certificate
Registrar in writing that it elects to terminate the book-entry system through
the Depository, the Trustee shall notify the affected Certificate Owners,
through the Depository with respect to all, any Class or any portion of any
Class of the Certificates, or (iii) the Trustee determines that Definitive
Certificates are required in accordance with the provisions of Section 5.03(e),
of the occurrence of any such event and of the availability of Definitive
Certificates to Certificate Owners requesting the same. Upon surrender to the
Certificate Registrar of the Book-Entry Certificates by the Depository or any
custodian acting on behalf of the Depository, accompanied by registration
instructions from the Depository for registration of transfer, the Trustee shall
execute, and the Certificate Registrar shall authenticate and deliver, within
five Business Days of such request if made at the corporate trust office of the
Certificate Registrar, or within ten Business Days if made at the office of a
transfer agent (other than the Certificate Registrar), the Definitive
Certificates to the Certificate Owners identified in such instructions. None of
the Depositor, the Master Servicer, the Trustee, the Special Servicer, the REMIC
Administrator or the Certificate Registrar shall be liable for any delay in
delivery of such instructions and may conclusively rely on, and shall be
protected in relying on, such instructions. Upon the issuance of Definitive
Certificates for purposes of evidencing ownership of the Senior Certificates,
the registered holders of the Definitive Certificates shall be recognized as
Certificateholders hereunder and, accordingly, shall be entitled directly to
receive payments on, to exercise Voting Rights with respect to, and to transfer
and exchange such Definitive Certificates.
(d) The Book-Entry Certificates shall be delivered by the Certificate
Registrar to the Depository, or pursuant to the Depository's instructions, and
shall be registered in the name of Cede & Co., and (ii) shall bear a legend
substantially to the following effect:
"Unless this certificate is presented by an authorized
representative of The Depository Trust Company, a New York
corporation ("DTC"), to the Certificate Registrar for
registration of transfer, exchange or payment, and any
certificate issued is registered in the name of Cede & Co.
or in such other name as is requested by an authorized
representative of DTC (and any payment is made to Cede & Co.
or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL inasmuch as the registered owner hereof, Cede &
Co., has an interest herein."
<PAGE>
The Book-Entry Certificates may be deposited with such other
Depository as the Certificate Registrar may from time to time designate, and
shall bear such legend as may be appropriate.
(e) If the Trustee has instituted or has been directed to institute
any judicial proceeding in a court to enforce the rights of the
Certificateholders under the Certificates, and the Trustee has been advised by
counsel that in connection with such proceeding it is necessary or appropriate
for the Trustee to obtain possession of all or any portion of the Certificates
evidenced by Book-Entry Certificates, the Trustee may in its sole discretion
determine that such Certificates shall no longer be represented by such
Book-Entry Certificates. In such event, the Trustee will execute and
authenticate and the Certificate Registrar will deliver, in exchange for such
Book-Entry Certificates, Definitive Certificates in a Denomination equal to the
aggregate Denomination of such Book-Entry-Certificates to the party so
requesting such Definitive Certificates. In such event, the Trustee shall notify
the affected Certificate Owners and make appropriate arrangements for the
effectuation of the purpose of this clause.
(f) Upon acceptance for exchange or transfer of a beneficial interest
in a Book-Entry Certificate for a Definitive Certificate, as provided herein,
the Certificate Registrar shall endorse on a schedule affixed to the related
Book-Entry Certificate (or on a continuation of such schedule affixed to such
Book-Entry Certificate and made a part thereof) an appropriate notation
evidencing the date of such exchange or transfer and a decrease in the
Denomination of such Book-Entry Certificate equal to the Denomination of such
Definitive Certificate issued in exchange therefor or upon transfer thereof.
(g) If a Holder of a Definitive Certificate wishes at any time to
transfer such Certificate to a Person who wishes to take delivery thereof in the
form of a beneficial interest in the Book-Entry Certificate, such transfer may
be effected only in accordance with Depository Rules and this Section 5.03(g).
Upon receipt by the Certificate Registrar at the Corporate Trust Office of (i)
the Definitive Certificate to be transferred with an assignment and transfer
pursuant to Section 5.02(a), (ii) written instructions given in accordance with
Depository Rules directing the Certificate Registrar to credit or cause to be
credited to another account a beneficial interest in the related Book-Entry
Certificate, in an amount equal to the Denomination of the Definitive
Certificate to be so transferred, (iii) a written order given in accordance with
the Depository Rules containing information regarding the account to be credited
with such beneficial interest, and (iv), if the affected Certificate in a
Non-Registered Certificate an Investment Representation Letter from the
transferee to the effect that such transferee is a Qualified Institutional
Buyer, the Certificate Registrar shall cancel such Definitive Certificate,
execute and deliver a new Definitive Certificate for the Denomination of the
Definitive Certificate not so transferred, registered in the name of the Holder
or the Holder's transferee (as instructed by the Holder), and the Certificate
Registrar shall instruct the Depository or the custodian holding such Book-Entry
Certificate on behalf of the Depository to increase the Denomination of the
related Book-Entry Certificate by the Denomination of the Definitive Certificate
to be so transferred, and to credit or cause to be credited to the account of
the Person specified in such instructions a corresponding Denomination of such
Book-Entry Certificate.
<PAGE>
SECTION 5.04. Mutilated, Destroyed, Lost or Stolen Certificates.
-------------------------------------------------
If (i) any mutilated Certificate is surrendered to the Certificate
Registrar, or the Certificate Registrar receives evidence to its satisfaction of
the destruction, loss or theft of any Certificate, and (ii) there is delivered
to the Trustee and the Certificate Registrar such security or indemnity as may
be required by them to save each of them harmless, then, in the absence of
actual notice to the Trustee or the Certificate Registrar that such Certificate
has been acquired by a bona fide purchaser, the Trustee shall execute, and the
Certificate Registrar shall authenticate and deliver, in exchange for or in lieu
of any such mutilated, destroyed, lost or stolen Certificate, a new Certificate
of the same Class and like Percentage Interest. Upon the issuance of any new
Certificate under this Section, the Trustee and the Certificate Registrar may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses (including
the fees and expenses of the Trustee and the Certificate Registrar) connected
therewith. Any replacement Certificate issued pursuant to this Section shall
constitute complete and indefeasible evidence of ownership in the Trust Fund, as
if originally issued, whether or not the lost, stolen or destroyed Certificate
shall be found at any time.
SECTION 5.05. Persons Deemed Owners.
---------------------
Prior to due presentation of a Certificate for registration of
transfer, the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the REMIC Administrator, the Certificate Registrar and any agents of any of them
may treat the person in whose name such Certificate is registered as the owner
of such Certificate for the purpose of receiving distributions pursuant to
Section 4.01 and for all other purposes whatsoever, except as and to the extent
provided in the definition of "Certificateholder", and none of the Depositor,
the Master Servicer, the Special Servicer, the Trustee, the REMIC Administrator,
the Certificate Registrar or any agent of any of them shall be affected by
notice to the contrary except as provided in Section 5.02(d).
[End of Article V]
<PAGE>
ARTICLE VI
THE DEPOSITOR, THE MASTER SERVICER,
THE SPECIAL SERVICER AND
THE REMIC ADMINISTRATOR
SECTION 6.01. Liability of the Depositor, the Master Servicer, the
Special Servicer and the REMIC Administrator.
-------------------------------------------------------
The Depositor, the Master Servicer, the Special Servicer and the REMIC
Administrator shall be liable in accordance herewith only to the extent of the
respective obligations specifically imposed upon and undertaken by the
Depositor, the Master Servicer, the Special Servicer and the REMIC Administrator
herein.
SECTION 6.02. Merger, Consolidation or Conversion of the Depositor,
the Master Servicer, the Special Servicer or the REMIC
Administrator.
-------------------------------------------------------
(a) Subject to subsection (b) below, the Depositor, the Master
Servicer, the Special Servicer and the REMIC Administrator each will keep in
full effect its existence, rights and franchises as a corporation under the laws
of the jurisdiction of its incorporation, and each will obtain and preserve its
qualification to do business as a foreign corporation in each jurisdiction in
which such qualification is or shall be necessary to protect the validity and
enforceability of this Agreement, the Certificates or any of the Mortgage Loans
and to perform its respective duties under this Agreement.
(b) The Depositor, the Master Servicer, the Special Servicer or the
REMIC Administrator may be merged or consolidated with or into any Person, or
transfer all or substantially all of its assets to any Person, in which case any
Person resulting from any merger or consolidation to which the Depositor, the
Master Servicer, the Special Servicer or the REMIC Administrator shall be a
party, or any Person succeeding to the business of the Depositor, the Master
Servicer, the Special Servicer or the REMIC Administrator, shall be the
successor of the Depositor, the Master Servicer, the Special Servicer and the
REMIC Administrator, as the case may be, hereunder, without the execution or
filing of any paper (other than an assumption agreement wherein the successor
shall agree to perform the obligations of and serve as Depositor, Master
Servicer, Special Servicer or REMIC Administrator, as the case may be, in
accordance with the terms of this Agreement) or any further act on the part of
any of the parties hereto, anything herein to the contrary notwithstanding;
provided, however, that such merger, consolidation or succession will not result
in a withdrawal, downgrading or qualification of the then-current ratings of the
Classes of Certificates that have been so rated (as evidenced by a letter to
such effect from each Rating Agency).
<PAGE>
SECTION 6.03. Limitation on Liability of the Depositor, the Master
Servicer, the Special Servicer, the REMIC
Administrator and Others.
----------------------------------------------------
(a) Neither the Depositor, the Master Servicer, the Special Servicer,
the REMIC Administrator, the Extension Adviser nor any of the directors,
officers, employees or agents of any of the foregoing shall be under any
liability to the Trust or the Certificateholders for any action taken or for
refraining from the taking of any action in good faith pursuant to this
Agreement, or for errors in judgment; provided, however, that this provision
shall not protect the Depositor, the Master Servicer, the Special Servicer, the
REMIC Administrator, the Extension Adviser or any such Person against any breach
of warranties or representations made herein or any liability which would
otherwise be imposed by reason of willful misfeasance, bad faith or negligence
in the performance of duties or by reason of negligent disregard of obligations
and duties hereunder. The Depositor, the Master Servicer, the Special Servicer,
the REMIC Administrator, the Extension Adviser and any director, officer,
employee or agent of the Depositor, the Master Servicer, the Special Servicer,
the REMIC Administrator or the Extension Adviser may rely in good faith on any
document of any kind which, prima facie, is properly executed and submitted by
any Person respecting any matters arising hereunder. The Depositor, the Master
Servicer, the Special Servicer, the REMIC Administrator, the Extension Adviser
and any director, officer, employee or agent of any of the foregoing shall be
indemnified and held harmless by the Trust against any loss, liability or
expense incurred in connection with any legal action relating to this Agreement
or the Certificates, other than any loss, liability or expense: (i) specifically
required to be borne thereby pursuant to the terms hereof; (ii) incurred in
connection with any breach of a representation, warranty or covenant made by it
herein; (iii) incurred by reason of bad faith, willful misconduct or negligence
in the performance of its obligations or duties hereunder, or by reason of
negligent disregard of such obligations or duties; or (iv) in the case of the
Depositor and any of its directors, officers, employees and agents, incurred in
connection with any violation by any of them of any state or federal securities
law.
(b) Neither the Depositor, the Master Servicer, the Special Servicer,
the Extension Adviser nor the REMIC Administrator shall be under any obligation
to appear in, prosecute or defend any legal or administrative action,
proceeding, hearing or examination that is not incidental to its respective
duties under this Agreement and which in its opinion may involve it in any
expense or liability; provided, however, that the Depositor, the Master
Servicer, the Special Servicer, the Extension Adviser or the REMIC Administrator
may in its discretion undertake any such action, proceeding, hearing or
examination that it may deem necessary or desirable in respect to this Agreement
and the rights and duties of the parties hereto and the interests of the
Certificateholders hereunder. In such event, the legal expenses and costs of
such action, proceeding, hearing or examination and any liability resulting
therefrom shall be expenses, costs and liabilities of the Trust Fund, and the
Depositor, the Master Servicer, the Special Servicer, the Extension Adviser and
the REMIC Administrator shall be entitled to be reimbursed therefor out of
amounts attributable to the Mortgage Loans on deposit in the Certificate Account
as provided by Section 3.05(a).
<PAGE>
SECTION 6.04. Depositor, Master Servicer, Special Servicer and REMIC
Administrator Not to Resign.
------------------------------------------------------
Subject to the provisions of Section 6.02, none of the Depositor, the
Master Servicer, the Special Servicer or the REMIC Administrator shall resign
from its respective obligations and duties hereby imposed on it except upon
determination that its duties hereunder are no longer permissible under
applicable law. Any such determination permitting the resignation of the
Depositor, the Master Servicer, the Special Servicer or the REMIC Administrator
shall be evidenced by an Opinion of Counsel to such effect delivered to the
Trustee. No such resignation by the Master Servicer or the Special Servicer
shall become effective until the Trustee or a successor servicer shall have
assumed the Master Servicer's or Special Servicer's, as applicable,
responsibilities and obligations in accordance with Section 7.02.
SECTION 6.05. Rights of the Depositor in Respect of the Master
Servicer, the Special Servicer and the REMIC
Administrator.
------------------------------------------------------
The Depositor may, but is not obligated to, enforce the obligations of
the Master Servicer, the Special Servicer and the REMIC Administrator hereunder
and may, but is not obligated to, perform, or cause a designee to perform, any
defaulted obligation of the Master Servicer, the Special Servicer and the REMIC
Administrator, hereunder or exercise the rights of the Master Servicer or
Special Servicer, as applicable, hereunder; provided, however, that the Master
Servicer, the Special Servicer and the REMIC Administrator shall not be relieved
of any of its obligations hereunder by virtue of such performance by the
Depositor or its designee. The Depositor shall not have any responsibility or
liability for any action or failure to act by the Master Servicer, the Special
Servicer and the REMIC Administrator and is not obligated to supervise the
performance of the Master Servicer, the Special Servicer and the REMIC
Administrator under this Agreement or otherwise.
[End of Article VI]
<PAGE>
ARTICLE VII
DEFAULT
SECTION 7.01. Events of Default; Master Servicer and Special Servicer
Termination.
--------------------------------------------------------
(a) "Event of Default", wherever used herein, means any one of the
following events:
(i) any failure by the Special Servicer to deposit into, or to remit
to the Master Servicer for deposit into, or the Master Servicer to make a
required deposit to the Certificate Account or the REO Account, if any, or
to deposit into, or to remit to the Trustee for deposit into, the
Lower-Tier Distribution Account any amount required to be so deposited or
remitted by the Master Servicer or the Special Servicer, as the case may
be, pursuant to, and at the time specified by, the terms of this Agreement;
or
(ii) any failure on the part of the Master Servicer or the Special
Servicer duly to observe or perform in any material respect any other of
the covenants or agreements on the part of the Master Servicer or the
Special Servicer contained in this Agreement which continues unremedied for
a period of 30 days (15 days in the case of a failure to pay the premium
for any insurance policy required to be maintained hereunder) after the
date on which written notice of such failure, requiring the same to be
remedied, shall have been given to the Master Servicer or the Special
Servicer, as the case may be, by any other party hereto, or to the Master
Servicer, the Special Servicer, the Depositor and the Trustee by the
Holders of Certificates of any Class evidencing, as to such Class,
Percentage Interests aggregating not less than 25%; or
(iii) any failure on the part of the REMIC Administrator duly to
observe or perform in any material respect any of the covenants or
agreements thereof contained in this Agreement which continues unremedied
for a period of 30 days after the date on which written notice of such
failure, requiring the same to be remedied, shall have been given to the
REMIC Administrator by any other party hereto, or to the REMIC
Administrator, with a copy to each other party hereto, by the Holders of
Certificates entitled to at least 25% of the Voting Rights; or
(iv) any breach on the part of the Master Servicer, the Special
Servicer or the REMIC Administrator of any representation or warranty
contained in Section 3.23, Section 3.24 or Section 10.05, as applicable,
which materially and adversely affects the interests of any Class of
Certificateholders and which continues unremedied for a period of 30 days
after the date on which notice of such breach, requiring the same to be
remedied, shall have been given to the Master Servicer, the Special
Servicer or the REMIC Administrator, as the case may be, by the Depositor
or the Trustee, or to the Master Servicer, the Special Servicer, the REMIC
Administrator, the Depositor and the Trustee by the Holders of Certificates
of any Class evidencing, as to such Class, Percentage Interests aggregating
not less than 25%; or
<PAGE>
(v) 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
for the appointment of a conservator, receiver, liquidator, trustee or
similar official in any bankruptcy, 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 Master Servicer, the Special Servicer or the REMIC Administrator and
such decree or order shall have remained in force undischarged or unstayed
for a period of 60 days; or
(vi) the Master Servicer, the Special Servicer or the REMIC
Administrator shall consent to the appointment of a conservator, receiver,
liquidator, trustee or similar official in any bankruptcy, insolvency,
readjustment of debt, marshalling of assets and liabilities or similar
proceedings of or relating to the Master Servicer, the Special Servicer or
the REMIC Administrator or of or relating to all or substantially all of
its property; or
(vii) the Master Servicer, the Special Servicer or the REMIC
Administrator shall admit in writing its inability to pay its debts
generally as they become due, file a petition to take advantage of any
applicable bankruptcy, insolvency or reorganization statute, make an
assignment for the benefit of its creditors, voluntarily suspend payment of
its obligations, or take any corporate action in furtherance of the
foregoing; or
(viii) any change in the status of the Master Servicer or Special
Servicer, as the case may be, that would result, in and of itself, in a
downgrading, qualification or withdrawal of the then current rating on any
Class of Certificates that are rated by a Rating Agency if the Master
Servicer or Special Servicer, as the case may be, is not replaced.
<PAGE>
(b) If any Event of Default with respect to the Master Servicer or the
Special Servicer (in either case, for purposes of this Section 7.01(b), the
"Defaulting Party") shall occur and be continuing, then, and in each and every
such case, so long as such Event of Default shall not have been remedied, the
Trustee may, and at the written direction of the Holders of Certificates
entitled to at least 51% of the Voting Rights, shall, terminate, by notice in
writing to the Defaulting Party, with a copy of such notice to the Depositor,
all of the rights and obligations of the Defaulting Party under this Agreement
and in and to the Mortgage Loans and the proceeds thereof; provided, however,
that the Defaulting Party shall be entitled to the payment of accrued and unpaid
compensation and reimbursement through the date of such termination as provided
for under this Agreement for services rendered and expenses incurred. From and
after the receipt by the Defaulting Party of such written notice, all authority
and power of the Defaulting Party under this Agreement, whether with respect to
the Certificates (other than as a Holder of any Certificate) or the Mortgage
Loans or otherwise, shall pass to and be vested in the Trustee pursuant to and
under this Section, and, without limitation, the Trustee is hereby authorized
and empowered to execute and deliver, on behalf of and at the expense of the
Defaulting Party, as attorney-in-fact or otherwise, any and all documents and
other instruments, and to do or accomplish all other acts or things necessary or
appropriate to effect the purposes of such notice of termination, whether to
complete the transfer and endorsement or assignment of the Mortgage Loans and
related documents, or otherwise. The Master Servicer and Special Servicer each
agree that if it is terminated pursuant to this Section 7.01(b), it shall
promptly (and in any event no later than ten Business Days subsequent to its
receipt of the notice of termination) provide the Trustee with all documents and
records requested by it to enable it to assume the Master Servicer's or Special
Servicer's, as the case may be, functions hereunder, and shall cooperate with
the Trustee in effecting the termination of the Master Servicer's or Special
Servicer's, as the case may be, responsibilities and rights hereunder,
including, without limitation, the transfer within two Business Days to the
Trustee for administration by it of all cash amounts which shall at the time be
or should have been credited by the Master Servicer to the Certificate Account
or any Servicing Account (if it is the Defaulting Party) or by the Special
Servicer to the REO Account (if it is the Defaulting Party) or thereafter be
received with respect to the Mortgage Loans or any REO Property (provided,
however, that the Master Servicer and the Special Servicer each shall, if
terminated pursuant to this Section 7.01(b), continue to be entitled to receive
all amounts accrued or owing to it under this Agreement on or prior to the date
of such termination, whether in respect of Advances (in the case of the Master
Servicer) or otherwise, and it and its directors, officers, employees and agents
shall continue to be entitled to the benefits of Section 6.03 notwithstanding
any such termination).
<PAGE>
(c) If any Event of Default with respect to the REMIC Administrator
shall occur and be continuing, then, and in each and every such case, so long as
the Event of Default shall not have been remedied, the Trustee may, and at the
written direction of the Holders of Certificates entitled to at least 51% of the
Voting Rights, shall, terminate, by notice in writing to the REMIC Administrator
(with a copy to each of the other parties hereto), all of the rights and
obligations of the REMIC Administrator under this Agreement. From and after the
receipt by the REMIC Administrator of such written notice, all authority and
power of the REMIC Administrator under this Agreement shall pass to and be
vested in the Trustee pursuant to and under this Section, and, without
limitation, the Trustee is hereby authorized and empowered to execute and
deliver, on behalf of and at the expense of the REMIC Administrator, as
attorney-in-fact or otherwise, any and all documents and other instruments, and
to do or accomplish all other acts or things necessary or appropriate to effect
the purposes of such notice of termination. The REMIC Administrator agrees
promptly (and in any event no later than ten Business Days subsequent to its
receipt of the notice of the termination) to provide the Trustee with all
documents and records requested thereby to enable the Trustee to assume the
REMIC Administrator's functions hereunder, and to cooperate with the Trustee in
effecting the termination of the REMIC Administrator's responsibilities and
rights hereunder (provided, however, that the REMIC Administrator and its
directors, officers, employees and agents shall continue to be entitled to the
benefits of Section 6.03 notwithstanding any such termination).
(d) The Holder or Holders of more than 50% of the aggregate
Certificate Balance of the then Controlling Class shall be entitled to terminate
the rights and obligations of the Special Servicer under this Agreement, with or
without cause, upon ten Business Days notice to the Special Servicer, the Master
Servicer and the Trustee, and to appoint a successor Special Servicer; provided,
however, that (i) such successor will meet the requirements set forth in Section
7.02, and (ii) as evidenced in writing by each of the Rating Agencies, the
proposed successor of such Special Servicer will not result in a downgrading,
withdrawal or qualification of the then current ratings provided by the Rating
Agencies in respect to any Class of then outstanding Certificates that is rated.
(e) In the event that S&P does not approve the Master Servicer as a
Master Servicer by August 31, 1996, and has not extended such date, the
Depositor shall terminate the rights and obligations of the Master Servicer
under this Agreement on that date, and shall appoint a successor Master
Servicer; provided, however, that (i) such successor will meet the requirements
set forth in Section 7.02, and (ii) as evidenced in writing by each of the
Rating Agencies, the proposed successor of such Master Servicer will not result
in a downgrading, withdrawal or qualification of the then current ratings
provided by the Rating Agencies in respect to any Class of then outstanding
Certificates that is rated. In the event that AMRESCO is terminated pursuant to
this Section 7.01, AMRESCO will be obligated to pay all expenses associated with
a transfer of the servicing to a successor Master Servicer under this Agreement.
(f) The Master Servicer and Special Servicer shall, from time to time,
take all such actions as are required by them in order to maintain their
respective status as an approved master servicer and special servicer, as
applicable, with each of the Rating Agencies.
<PAGE>
SECTION 7.02. Trustee to Act; Appointment of Successor.
----------------------------------------
On and after the time the Master Servicer, the Special Servicer or the
REMIC Administrator resigns pursuant to first sentence of Section 6.04 or
receives a notice of termination pursuant to Section 7.01, the Trustee shall be
the successor in all respects to the Master Servicer, the Special Servicer or
the REMIC Administrator, as the case may be, in its capacity as such under this
Agreement and the transactions set forth or provided for herein and shall be
subject to all the responsibilities, duties and liabilities relating thereto and
arising thereafter placed on the Master Servicer, the Special Servicer or the
REMIC Administrator, as the case may be, by the terms and provisions hereof,
including, without limitation, if the Master Servicer is the resigning or
terminated party, the Master Servicer's obligation to make P&I Advances;
provided that any failure to perform such duties or responsibilities caused by
the Master Servicer's, the Special Servicer's or the REMIC Administrator's, as
the case may be, failure to provide information or monies required by Section
7.01 shall not be considered a default by the Trustee hereunder. The Trustee
shall not be liable for any of the representations and warranties of the
resigning or terminated party or for any losses incurred by the resigning or
terminated party pursuant to Section 3.06 hereunder nor shall the Trustee be
required to purchase any Mortgage Loan hereunder. As compensation therefor, the
Trustee shall be entitled to all fees and other compensation which the resigning
or terminated party would have been entitled to if the resigning or terminated
party had continued to act hereunder. Notwithstanding the above, the Trustee
may, if it shall be unwilling to so act, or shall, if it is unable to so act or
if the Holders of Certificates entitled to at least 51% of the Voting Rights so
request in writing to the Trustee or if the Trustee is not approved as a Master
Servicer or Special Servicer by the Rating Agencies, promptly appoint, or
petition a court of competent jurisdiction to appoint, any established
institution (i) that has a net worth of not less than $25,000,000, in the case
of a successor to the Master Servicer, or $15,000,000, in the case of a
successor to the Special Servicer or REMIC Administrator; and (ii) for which
each Rating Agency shall have given written confirmation that the appointment of
such institution would not result in the withdrawal, downgrade or qualification
of the then-current rating assigned to any Class of Certificates, as the
successor to the Master Servicer, the Special Servicer or the REMIC
Administrator, as the case may be, hereunder in the assumption of all or any
part of the responsibilities, duties or liabilities of the Master Servicer, the
Special Servicer or the REMIC Administrator, as the case may be, hereunder. In
such event, recognizing that the Trustee's first obligation is its fiduciary
duty to Certificateholders, the Trustee shall use its reasonable efforts to
appoint a successor Master Servicer that (i) will agree to succeed to AMRESCO's
rights and obligations as Master Servicer under any existing Subservicing
Agreements and (ii) will be compensated for its services as Master Servicer
(exclusive of any subservicing fees payable by the Master Servicer to such
Sub-Servicers) at the rate of 0.039% per annum. In the event the Trustee is
unable to appoint a successor Master Servicer pursuant to the prior sentence
within a reasonable period of time, the Trustee shall use its reasonable efforts
to appoint a successor Master Servicer that will agree to succeed to AMRESCO's
rights and obligations as Master Servicer under any existing Subservicing
Agreements and (ii) will be compensated for its services as Master Servicer
(exclusive of any subservicing fees payable by the Master Servicer to such
Sub-Servicers) at a rate that is not in excess of 0.093% per annum. In the event
the Trustee is unable to appoint a successor Master Servicer pursuant to the
prior sentence within a further reasonable period of time, the Trustee shall use
its reasonable efforts to appoint a successor Master Servicer that will agree to
be compensated for its services as Master Servicer (exclusive of any
subservicing fees payable by the Master Servicer to such Sub-Servicers) at a
rate that is not in excess of 0.093% per annum, and in such circumstances shall
have the right under the terms of the Sub-Servicing Agreements to terminate any
existing Sub-Servicing Agreements without cause and without the payment of any
penalty or termination fee. Except with respect to an appointment provided
below, no appointment of a successor to the Master Servicer, the Special
Servicer or the REMIC Administrator hereunder shall be effective until the
assumption of the successor to such party of all its responsibilities, duties
and liabilities hereunder. Pending appointment of a successor to the Master
Servicer, the Special Servicer or the REMIC Administrator hereunder, the Trustee
shall act in such capacity as hereinabove provided. Notwithstanding the above,
the Trustee shall, if the Master Servicer is the resigning or terminated party,
and the Trustee is no longer permitted under applicable law from performing its
duties hereunder, promptly appoint any established mortgage loan servicing
<PAGE>
institution (i) that has a net worth of not less than $25,000,000 and (ii) for
which each Rating Agency shall have given written confirmation that the
appointment of such institution would not result in the withdrawal, downgrade or
qualification of the then-current rating assigned to any Class of Certificates,
as the successor to the Master Servicer hereunder in the assumption of all or
any part of the responsibilities, duties or liabilities of the Master Servicer
hereunder (including, without limitation, the obligation to make P&I Advances
pursuant to Section 4.03), which appointment will become effective immediately.
In connection with any such appointment and assumption described herein, the
Trustee may make such arrangements for the compensation of such successor out of
payments on Mortgage Loans or otherwise as it and such successor shall agree.
The Depositor, the Trustee, such successor and each other party hereto shall
take such action, consistent with this Agreement, as shall be necessary to
effectuate any such succession.
SECTION 7.03. Notification to Certificateholders.
----------------------------------
(a) Upon any resignation of the Master Servicer, the Special Servicer
or the REMIC Administrator pursuant to Section 6.04, any termination of the
Master Servicer, the Special Servicer or the REMIC Administrator pursuant to
Section 7.01 or any appointment of a successor to the Master Servicer, the
Special Servicer or the REMIC Administrator pursuant to Section 7.02, the
Trustee shall give prompt written notice thereof to Certificateholders at their
respective addresses appearing in the Certificate Register.
(b) Not later than the later of (i) 60 days after the occurrence of
any event which constitutes or, with notice or lapse of time or both, would
constitute an Event of Default and (ii) five days after the Trustee would be
deemed to have notice of the occurrence of such an event in accordance with
Section 8.02(vii), the Trustee shall transmit by mail to the Depositor and all
Certificateholders notice of such occurrence, unless such default shall have
been cured.
SECTION 7.04. Waiver of Events of Default.
---------------------------
The Holders of Certificates representing at least 66% of the Voting
Rights allocated to the Classes of Certificates affected by any Event of Default
hereunder may waive such Event of Default; provided, however, that an Event of
Default under clause (i) of Section 7.01 may be waived only by all of the
Certificateholders of the affected Classes. Upon any such waiver of an Event of
Default, such Event of Default shall cease to exist and shall be deemed to have
been remedied for every purpose hereunder. No such waiver shall extend to any
subsequent or other Event of Default or impair any right consequent thereon
except to the extent expressly so waived. Notwithstanding any other provisions
of this Agreement, for purposes of waiving any Event of Default pursuant to this
Section 7.04, Certificates registered in the name of the Depositor or any
Affiliate of the Depositor shall be entitled to the same Voting Rights with
respect to the matters described above as they would if any other Person held
such Certificates.
<PAGE>
SECTION 7.05. Trustee as Maker of Advances.
----------------------------
In the event that the Master Servicer fails to fulfill its obligations
hereunder to make any Advances, the Trustee shall perform such obligations (x)
within one Business Day of such failure by the Master Servicer with respect to
Servicing Advances, and, (y) by no later than 5:00 p.m. (New York City time) on
the related P&I Advance Date with respect to P&I Advances, and, with respect to
any such Advances made by the Trustee, the Trustee shall succeed to all of the
Master Servicer's rights with respect to Advances hereunder, including, without
limitation, the Master Servicer's rights of reimbursement and interest at the
Reimbursement Rate, and rights to make a determination that an Advance is a
Nonrecoverable Advance; provided, however, that if Advances made by both the
Trustee and the Master Servicer shall at any time be outstanding, or any
interest on Advances shall be accrued and unpaid, all amounts available to repay
such Advances and interest on Advances hereunder shall be applied entirely to
the Advances outstanding to the Trustee, until such Advances shall have been
repaid in full, together with all accrued interest on such Advances. In
connection with making any Advances hereunder, the Trustee shall be entitled to
conclusively rely on any determination by the Master Servicer of a
Nonrecoverable Advance.
SECTION 7.06. Advance Collateral Fund for Trustee.
-----------------------------------
(a) Pursuant to the terms of the Collateral Fund Custodial Agreement,
for so long as the Trustee's implied long-term senior debt rating by the Rating
Agencies is not in at least the second highest rating category of each such
Rating Agency, the Trustee shall establish and maintain with the Custodian the
Advance Collateral Fund to secure the Trustee's obligations to make P&I Advances
pursuant to the terms of this Agreement. Pursuant to Section 3.03 of the
Collateral Fund Custodial Agreement, the Trustee shall grant a security interest
in the Advance Collateral Fund to the Collateral Fund Custodian for the benefit
of the Certificateholders.
(b) If at any time that the Trustee is the successor Master Servicer
or is otherwise obligated to make P&I Advances and the Trustee for any reason
does not make a P&I Advance required to be made by the Trustee pursuant to this
Agreement, then by 1:30 p.m., New York City time, on the related P&I Advance
Date, pursuant to Section 2.02 of the Collateral Fund Custodial Agreement, the
Trustee shall deliver a notice to the Collateral Fund Custodian to withdraw the
necessary amount from the Advance Collateral Fund and deposit such funds into
the Lower-Tier Distribution Account.
(c) In accordance with the provisions of the Collateral Fund Custodial
Agreement, at any time, the Trustee may substitute a surety bond, letter of
credit, insurance policy or other security arrangement (the "Substitute
Collateral") for the Advance Collateral Fund and amounts on deposit therein or
any substitute therefor; provided that it has received written confirmation from
each Rating Agency that such action would not result in the downgrade,
qualification or withdrawal of the rating then assigned by any Rating Agency to
any Class of Certificates. In addition, prior to any such substitution, the
Trustee shall have received an Opinion of Counsel to the effect that such
Substitute Collateral is an enforceable obligation of the issuer thereof.
<PAGE>
(d) If the arrangements for the Advance Collateral Fund have been
terminated because the Trustee's implied long-term senior debt rating by the
Rating Agencies was upgraded to at least the second highest category of each
such Rating Agency and, subsequent to such termination of the Advance Collateral
Fund, the Trustee's implied long-term senior debt rating by the Rating Agencies
shall have been downgraded below the second highest category of each such Rating
Agency, then the Trustee shall be required to enter into an agreement similar to
the Collateral Fund Custodial Agreement that is acceptable to the Rating
Agencies. If such substitute arrangement is not made within 60 days of such
downgrade, then such failure by the Trustee will render the Trustee ineligible
under Section 8.06.
(e) The Advance Collateral Fund shall be an "outside reserve fund"
within the meaning of the REMIC Provisions and shall not be an asset of either
the Upper-Tier REMIC or Lower-Tier REMIC. The Advance Collateral Fund shall be
beneficially owned by the Trustee for federal income tax purposes, and the
Trustee shall report all income, gain, loss or deduction with respect thereto.
Any reimbursement from the Trust Fund to the Advance Collateral Fund shall be
treated as paid to the Trustee in its capacity as beneficial owner of the
Advance Collateral Fund.
[End of Article VII]
<PAGE>
ARTICLE VIII
CONCERNING THE TRUSTEE
SECTION 8.01. Duties of Trustee.
-----------------
(a) The Trustee, prior to the occurrence of an Event of Default and
after the curing or waiver of all Events of Default which may have occurred,
undertakes to perform such duties and only such duties as are specifically set
forth in this Agreement. If an Event of Default occurs and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Agreement, and use the same degree of care and skill in their exercise as a
prudent man would exercise or use under the circumstances in the conduct of his
own affairs. Any permissive right of the Trustee contained in this Agreement
shall not be construed as a duty.
(b) The Trustee, upon receipt of all resolutions, certificates,
statements, opinions, reports, documents, orders or other instruments furnished
to the Trustee which are specifically required to be furnished pursuant to any
provision of this Agreement (other than the Mortgage Files, the review of which
is specifically governed by the terms of Article II), shall examine them to
determine whether they conform to the requirements of this Agreement. If any
such instrument is found not to conform to the requirements of this Agreement in
a material manner, the Trustee shall take such action as it deems appropriate to
have the instrument corrected. The Trustee shall not be responsible for the
accuracy or content of any resolution, certificate, statement, opinion, report,
document, order or other instrument furnished by the Depositor, the Master
Servicer, the Special Servicer or the REMIC Administrator, and accepted by the
Trustee in good faith, pursuant to this Agreement.
(c) No provision of this Agreement shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act or its own willful misconduct; provided, however, that:
(i) Prior to the occurrence of an Event of Default, and after the
curing of all such Events of Default which may have occurred, the duties
and obligations of the Trustee shall be determined solely by the express
provisions of this Agreement, the Trustee shall not be liable except for
the performance of such duties and obligations as are specifically set
forth in this Agreement, no implied covenants or obligations shall be read
into this Agreement against the Trustee and, in the absence of bad faith on
the part of the Trustee, the Trustee may conclusively rely, as to the truth
of the statements and the correctness of the opinions expressed therein,
upon any certificates or opinions furnished to the Trustee and conforming
to the requirements of this Agreement;
<PAGE>
(ii) The Trustee shall not be personally liable for an error of
judgment made in good faith by a Responsible Officer or Responsible
Officers of the Trustee, unless it shall be proved that the Trustee was
negligent in ascertaining the pertinent facts; and
(iii) The Trustee shall not be personally liable with respect to any
action taken, suffered or omitted to be taken by it in good faith in
accordance with the direction of Holders of Certificates entitled to at
least 25% of the Voting Rights relating to the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee, under this
Agreement (unless a higher percentage of Voting Rights is required for such
action).
SECTION 8.02. Certain Matters Affecting the Trustee.
-------------------------------------
Except as otherwise provided in Section 8.01:
(i) The Trustee may rely upon and shall be protected in acting or
refraining from acting upon any resolution, Officer's Certificate,
certificate of auditors or any other certificate, statement, instrument,
opinion, report, notice, request, consent, order, Appraisal, bond or other
paper or document reasonably believed by it to be genuine and to have been
signed or presented by the proper party or parties;
(ii) The Trustee may consult with counsel and the written advice of
such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken or suffered or
omitted by it hereunder in good faith and in accordance therewith;
(iii) The Trustee shall be under no obligation to exercise any of the
trusts or powers vested in it by this Agreement or to make any
investigation of matters arising hereunder or to institute, conduct or
defend any litigation hereunder or in relation hereto at the request, order
or direction of any of the Certificateholders, pursuant to the provisions
of this Agreement, unless such Certificateholders shall have offered to the
Trustee reasonable security or indemnity against the costs, expenses and
liabilities which may be incurred therein or thereby; the Trustee shall not
be required to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its duties hereunder, or
in the exercise of any of its rights or powers, if it shall have reasonable
grounds for believing that repayment of such funds or adequate indemnity
against such risk or liability is not reasonably assured to it; nothing
contained herein shall, however, relieve the Trustee of the obligation,
upon the occurrence of an Event of Default which has not been cured, to
exercise such of the rights and powers vested in it by this Agreement, and
to use the same degree of care and skill in their exercise as a prudent man
would exercise or use under the circumstances in the conduct of his own
affairs;
<PAGE>
(iv) The Trustee shall not be personally liable for any action
reasonably taken, suffered or omitted by it in good faith and believed by
it to be authorized or within the discretion or rights or powers conferred
upon it by this Agreement;
(v) Prior to the occurrence of an Event of Default hereunder and after
the curing of all Events of Default which may have occurred, the Trustee
shall not be bound to make any investigation into the facts or matters
stated in any resolution, certificate, statement, instrument, opinion,
report, notice, request, consent, order, approval, bond or other paper or
document, unless requested in writing to do so by Holders of Certificates
entitled to at least 50% of the Voting Rights; provided, however, that if
the payment within a reasonable time to the Trustee of the costs, expenses
or liabilities likely to be incurred by it in the making of such
investigation is, in the opinion of the Trustee, not reasonably assured to
the Trustee by the security afforded to it by the terms of this Agreement,
the Trustee may require reasonable indemnity against such expense or
liability as a condition to taking any such action. The reasonable expense
of every such reasonable examination shall be paid by the Master Servicer
or, if paid by the Trustee, shall be repaid by the Master Servicer upon
demand;
(vi) The Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys; provided, however, that the appointment of such agents or
attorneys shall not relieve the Trustee of its duties or obligations
hereunder;
(vii) For all purposes under this Agreement, the Trustee shall not be
deemed to have notice of any Event of Default unless a Responsible Officer
of the Trustee has actual knowledge thereof or unless written notice of any
event which is in fact such a default is received by the Trustee at the
Corporate Trust Office, and such notice references the Certificates or this
Agreement; and
(viii) The Trustee shall not be responsible for any act or omission of
the Master Servicer, the Special Servicer, the Extension Adviser or the
REMIC Administrator (unless the Trustee is acting as Master Servicer,
Special Servicer, Extension Adviser or the REMIC Administrator, as the case
may be) or of the Depositor.
<PAGE>
SECTION 8.03. Trustee Not Liable for Validity or Sufficiency of
Certificates or Mortgage Loans.
-------------------------------------------------------
The recitals contained herein and in the Certificates, other than the
statements attributed to the Trustee in Sections 2.02 and 2.04 and the signature
of the Trustee set forth on each outstanding Certificate, shall be taken as the
statements of the Depositor, the Master Servicer, the Special Servicer or the
REMIC Administrator, as the case may be, and the Trustee assumes no
responsibility for their correctness. The Trustee makes no representations as to
the validity or sufficiency of this Agreement or of any Certificate (other than
as to the signature of the Trustee set forth thereon) or of any Mortgage Loan or
related document. The Trustee shall not be accountable for the use or
application by the Depositor of any of the Certificates issued to it or of the
proceeds of such Certificates, or for the use or application of any funds paid
to the Depositor in respect of the assignment of the Mortgage Loans to the Trust
Fund, or any funds deposited in or withdrawn from the Certificate Account or any
other account by or on behalf of the Depositor, the Master Servicer, the Special
Servicer, the Extension Adviser or the REMIC Administrator. The Trustee shall
not be responsible for the accuracy or content of any resolution, certificate,
statement, opinion, report, document, order or other instrument furnished by the
Depositor, the Master Servicer, the Special Servicer, the Extension Adviser or
the REMIC Administrator, and accepted by the Trustee in good faith, pursuant to
this Agreement.
SECTION 8.04. Trustee May Own Certificates.
----------------------------
The Trustee, in its individual or any other capacity, may become the
owner or pledgee of Certificates with the same rights it would have if it were
not Trustee.
SECTION 8.05. Fees and Expenses of Trustee; Indemnification of
Trustee.
------------------------------------------------------
(a) Monthly on each Distribution Date, the Trustee shall be entitled
to withdraw from the Lower-Tier Distribution Account, prior to any distributions
being made from such account on such date to Certificateholders, the Trustee Fee
for such Distribution Date and, to the extent not previously paid, for all prior
Distribution Dates. The Trustee Fee (which shall not be limited to any provision
of law in regard to the compensation of a trustee of an express trust) shall
constitute the Trustee's sole form of compensation for all services rendered by
it in the execution of the trusts hereby created and in the exercise and
performance of any of the powers and duties of the Trustee hereunder.
(b) The Trustee and any director, officer, employee or agent of the
Trustee shall be entitled to be indemnified and held harmless by the Trust Fund
(to the extent of amounts on deposit in the Lower-Tier Distribution Account from
time to time) against any loss, liability or expense (including, without
limitation, costs and expenses of litigation, and of investigation, counsel
fees, damages, judgments and amounts paid in settlement) arising out of, or
incurred in connection with, any act or omission of the Trustee relating to the
exercise and performance of any of the powers and duties of the Trustee
hereunder; provided, that neither the Trustee nor any of the other above
specified Persons shall be entitled to indemnification pursuant to this Section
8.05(b) for (i) allocable overhead, (ii) expenses or disbursements incurred or
made by or on behalf of the Trustee in the normal course of the Trustee's
performing its duties in accordance with any of the provisions hereof, which are
not "unanticipated expenses of the REMIC" within the meaning of Treasury
Regulations Section 1.860G-1(b)(3)(ii), (iii) any expense or liability
specifically required to be borne thereby pursuant to the terms hereof, or (iv)
any loss, liability or expense incurred by reason of willful misfeasance, bad
faith or negligence in the performance of the Trustee's obligations and duties
hereunder, or by reason of negligent disregard of such obligations or duties, or
as may arise from a breach of any representation, warranty or covenant of the
Trustee made herein. The provisions of this Section 8.05(b) shall survive any
resignation or removal of the Trustee and appointment of a successor trustee.
<PAGE>
SECTION 8.06. Eligibility Requirements for Trustee.
------------------------------------
The Trustee hereunder shall at all times be an association or a
corporation organized and doing business under the laws of the United States of
America or any State thereof or the District of Columbia, authorized under such
laws to exercise trust powers, having a combined capital and surplus of at least
$100,000,000, subject to supervision or examination by federal or state
authority and having a minimum long-term debt rating by DCR of "A" and by S&P of
"AA," provided, however, that, to the extent it is otherwise ineligible
hereunder, The Chase Manhattan Bank, N.A. shall be deemed to be eligible with
respect to the S&P criteria so long as it complies with Section 7.06 hereof. If
such association or corporation publishes reports of condition at least
annually, pursuant to law or to the requirements of the aforesaid supervising or
examining authority, then for the purposes of this Section the combined capital
and surplus of such association or corporation shall be deemed to be its
combined capital and surplus as set forth in its most recent report of condition
so published. In case at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section, the Trustee shall resign
immediately in the manner and with the effect specified in Section 8.07. The
corporation or association serving as Trustee may have normal banking and trust
relationships with the Depositor, the Master Servicer, the Special Servicer, the
REMIC Administrator and their respective Affiliates.
SECTION 8.07. Resignation and Removal of the Trustee.
--------------------------------------
(a) The Trustee may at any time resign and be discharged from the
trusts hereby created by giving written notice thereof to the Depositor, the
Master Servicer, the Special Servicer, the REMIC Administrator and to all
Certificateholders. Upon receiving such notice of resignation, the Depositor
shall promptly appoint a successor trustee acceptable to the Master Servicer by
written instrument, in duplicate, which instrument shall be delivered to the
resigning Trustee and to the successor trustee. A copy of such instrument shall
be delivered to the Master Servicer, the Special Servicer, the REMIC
Administrator and the Certificateholders by the Depositor. If no successor
trustee shall have been so appointed and have accepted appointment within 30
days after the giving of such notice of resignation, the resigning Trustee may
petition any court of competent jurisdiction for the appointment of a successor
trustee.
(b) If at any time the Trustee shall cease to be eligible in
accordance with the provisions of Section 8.06 and shall fail to resign after
written request therefor by the Depositor or the Master Servicer, or if at any
time the Trustee shall become incapable of acting, or shall be adjudged bankrupt
or insolvent, or a receiver of the Trustee or of its property shall be
appointed, or any public officer shall take charge or control of the Trustee or
of its property or affairs for the purpose of rehabilitation, conservation or
liquidation, then the Depositor may remove the Trustee and appoint a successor
trustee acceptable to the Master Servicer by written instrument, in duplicate,
which instrument shall be delivered to the Trustee so removed and to the
successor trustee. A copy of such instrument shall be delivered to the Master
Servicer, the Special Servicer, the REMIC Administrator and the
Certificateholders by the Depositor.
<PAGE>
(c) The Holders of Certificates entitled to at least 51% of the Voting
Rights may at any time remove the Trustee and appoint a successor trustee by
written instrument or instruments, in triplicate, signed by such Holders or
their attorneys-in-fact duly authorized, one complete set of which instruments
shall be delivered to the Master Servicer, one complete set to the Trustee so
removed and one complete set to the successor so appointed. A copy of such
instrument shall be delivered to the Depositor, the Special Servicer, the REMIC
Administrator and the remaining Certificateholders by the Master Servicer.
(d) Any resignation or removal of the Trustee and appointment of a
successor trustee pursuant to any of the provisions of this Section 8.07 shall
not become effective until acceptance of appointment by the successor trustee as
provided in Section 8.08.
SECTION 8.08. Successor Trustee.
-----------------
(a) Any successor trustee appointed as provided in Section 8.07 shall
execute, acknowledge and deliver to the Depositor, the Master Servicer, the
Special Servicer, the REMIC Administrator and to its predecessor trustee an
instrument accepting such appointment hereunder, and thereupon the resignation
or removal of the predecessor trustee shall become effective and such successor
trustee, without any further act, deed or conveyance, shall become fully vested
with all the rights, powers, duties and obligations of its predecessor
hereunder, with the like effect as if originally named as trustee herein. The
predecessor trustee shall deliver to the successor trustee all Mortgage Files
and related documents and statements held by it hereunder (other than any
Mortgage Files at the time held on its behalf by a Custodian, which Custodian
shall become the agent of the successor trustee), and the Depositor, the Master
Servicer, the Special Servicer, the REMIC Administrator and the predecessor
trustee shall execute and deliver such instruments and do such other things as
may reasonably be required to more fully and certainly vest and confirm in the
successor trustee all such rights, powers, duties and obligations, and to enable
the successor trustee to perform its obligations hereunder.
(b) No successor trustee shall accept appointment as provided in this
Section 8.08 unless at the time of such acceptance such successor trustee shall
be eligible under the provisions of Section 8.06.
(c) Upon acceptance of appointment by a successor trustee as provided
in this Section 8.08, the Master Servicer shall mail notice of the succession of
such trustee hereunder to the Depositor and the Certificateholders. If the
Master Servicer fails to mail such notice within 10 days after acceptance of
appointment by the successor trustee, the successor trustee shall cause such
notice to be mailed at the expense of the Master Servicer.
<PAGE>
SECTION 8.09. Merger or Consolidation of Trustee.
----------------------------------
Any entity into which the Trustee may be merged or converted or with
which it may be consolidated or any entity resulting from any merger, conversion
or consolidation to which the Trustee shall be a party, or any entity succeeding
to the business of the Trustee, shall be the successor of the Trustee hereunder,
provided such entity shall be eligible under the provisions of Section 8.06,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto, anything herein to the contrary notwithstanding.
SECTION 8.10. Appointment of Co-Trustee or Separate Trustee.
---------------------------------------------
(a) Notwithstanding any other provisions hereof, at any time, for the
purpose of meeting any legal requirements of any jurisdiction in which any part
of the Trust Fund or property securing the same may at the time be located, the
Master Servicer and the Trustee acting jointly shall have the power and shall
execute and deliver all instruments to appoint one or more Persons approved by
the Trustee to act as co-trustee or co-trustees, jointly with the Trustee, or
separate trustee or separate trustees, of all or any part of the Trust Fund, and
to vest in such Person or Persons, in such capacity, such title to the Trust
Fund, or any part thereof, and, subject to the other provisions of this Section
8.10, such powers, duties, obligations, rights and trusts as the Master Servicer
and the Trustee may consider necessary or desirable. If the Master Servicer
shall not have joined in such appointment within 15 days after the receipt by it
of a request to do so, or in case an Event of Default shall have occurred and be
continuing, the Trustee alone shall have the power to make such appointment. No
co-trustee or separate trustee hereunder shall be required to meet the terms of
eligibility as a successor trustee under Section 8.06 hereunder and no notice to
Holders of Certificates of the appointment of co-trustee(s) or separate
trustee(s) shall be required under Section 8.08 hereof.
(b) In the case of any appointment of a co-trustee or separate trustee
pursuant to this Section 8.10, all rights, powers, duties and obligations
conferred or imposed upon the Trustee shall be conferred or imposed upon and
exercised or performed by the Trustee and such separate trustee or co-trustee
jointly, except to the extent that under any law of any jurisdiction in which
any particular act or acts are to be performed (whether as Trustee hereunder or
as successor to the Master Servicer, the Special Servicer or the REMIC
Administrator hereunder), the Trustee shall be incompetent or unqualified to
perform such act or acts, in which event such rights, powers, duties and
obligations (including the holding of title to the Trust Fund or any portion
thereof in any such jurisdiction) shall be exercised and performed by such
separate trustee or co-trustee at the direction of the Trustee.
<PAGE>
(c) Any notice, request or other writing given to the Trustee shall be
deemed to have been given to each of the then separate trustees and co-trustees,
as effectively as if given to each of them. Every instrument appointing any
separate trustee or co-trustee shall refer to this Agreement and the conditions
of this Article VIII. Each separate trustee and co-trustee, upon its acceptance
of the trusts conferred, shall be vested with the estates or property specified
in its instrument of appointment, either jointly with the Trustee or separately,
as may be provided therein, subject to all the provisions of this Agreement,
specifically including every provision of this Agreement relating to the conduct
of, affecting the liability of, or affording protection to, the Trustee. Every
such instrument shall be filed with the Trustee.
(d) Any separate trustee or co-trustee may, at any time, constitute
the Trustee, its agent or attorney-in-fact, with full power and authority, to
the extent not prohibited by law, to do any lawful act under or in respect of
this Agreement on its behalf and in its name. If any separate trustee or
co-trustee shall die, become incapable of acting, resign or be removed, all of
its estates, properties, rights, remedies and trusts shall vest in and be
exercised by the Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee.
(e) The appointment of a co-trustee or separate trustee under this
Section 8.10 shall not relieve the Trustee of its duties and responsibilities
hereunder.
SECTION 8.11. Appointment of Custodians.
-------------------------
The Trustee may, with the consent of the Master Servicer, appoint one
or more Custodians to hold all or a portion of the Mortgage Files as agent for
the Trustee. Each Custodian shall be a depository institution subject to
supervision by federal or state authority, shall have combined capital and
surplus of at least $15,000,000, shall be qualified to do business in the
jurisdiction in which it holds any Mortgage File and shall not be the Depositor
or any Affiliate of the Depositor. Each Custodian shall be subject to the same
obligations and standard of care as would be imposed on the Trustee hereunder in
connection with the retention of Mortgage Files directly by the Trustee. The
appointment of one or more Custodians shall not relieve the Trustee from any of
its obligations hereunder, and the Trustee shall remain responsible for all acts
and omissions of any Custodian.
<PAGE>
SECTION 8.12. Access to Certain Information.
-----------------------------
(a) On or prior to the date of the first sale of any Non-Registered
Certificate to an Independent third party, the Depositor shall provide to the
Trustee three copies of any private placement memorandum or other disclosure
document used by the Depositor or its Affiliate in connection with the offer and
sale of the Class of Certificates to which such Non-Registered Certificate
belongs. In addition, if any such private placement memorandum or disclosure
document is revised, amended or supplemented at any time following the delivery
thereof to the Trustee, the Depositor promptly shall inform the Trustee of such
event and shall deliver to the Trustee three copies of the private placement
memorandum or disclosure document, as revised, amended or supplemented. The
Trustee shall maintain at its offices primarily responsible for administering
the Trust Fund and shall, upon reasonable advance notice, make available during
normal business hours for review by any Holder of a Certificate, the Depositor,
the Master Servicer, the Special Servicer, the Extension Adviser, any Rating
Agency or any other Person to whom the Trustee believes such disclosure is
appropriate, originals or copies of the following items: (i) in the case of a
Holder or prospective transferee of a Non-Registered Certificate, any private
placement memorandum or other disclosure document relating to the Class of
Certificates to which such Non-Registered Certificate belongs, in the form most
recently provided to the Trustee; and (ii) in all cases, (A) this Agreement and
any amendments hereto entered into pursuant to Section 11.01, (B) all statements
required to be delivered to Certificateholders of the relevant Class pursuant to
Section 4.02 since the Closing Date, (C) all Officer's Certificates delivered to
the Trustee since the Closing Date pursuant to Section 3.13, (D) all
accountants' reports delivered to the Trustee since the Closing Date pursuant to
Section 3.14, (E) any inspection report prepared by the Master Servicer,
Sub-Servicer or Special Servicer, as applicable, and delivered to the Trustee
and Master Servicer in respect of each Mortgaged Property pursuant to Section
3.12(a), (F) as to each Mortgage Loan pursuant to which the related Mortgagor is
required to deliver such items or the Special Servicer has otherwise acquired
such items, the most recent annual operating statement and rent roll of the
related Mortgaged Property and financial statements of the related Mortgagor
collected by the Master Servicer, Sub-Servicer or Special Servicer, as
applicable, and delivered to the Trustee pursuant to Section 3.12(b), together
with the accompanying written reports to be prepared by the Special Servicer and
delivered to the Trustee pursuant to Section 3.12(b), (G) any and all notices,
reports and Environmental Assessments delivered to the Trustee with respect to
any Mortgaged Property securing a Defaulted Mortgage Loan as to which the
environmental testing contemplated by Section 3.09(c) revealed that either of
the conditions set forth in clauses (i) and (ii) of the first sentence thereof
was not satisfied (but only for so long as such Mortgaged Property or the
related Mortgage Loan are part of the Trust Fund), (H) any and all
modifications, waivers and amendments of the terms of a Mortgage Loan entered
into by the Master Servicer or the Special Servicer and delivered to the Trustee
pursuant to Section 3.20 (but only for so long as the affected Mortgage Loan is
part of the Trust Fund), (I) any and all Officer's Certificates delivered to the
Trustee to support the Master Servicer's determination that any P&I Advance or
Servicing Advance was or, if made, would be a Nonrecoverable P&I Advance or
Nonrecoverable Servicing Advance, as the case may be, (J) any and all of the
Mortgage Loan documents contained in the Mortgage File, (K) any and all
Appraisals obtained pursuant to the definition of "Appraisal Reduction" herein,
(L) information regarding the occurrence of Servicing Transfer Events as to the
Mortgage Loans, (M) any and all Sub-Servicing Agreements and any amendments
thereto and modifications thereof, and (N) any Asset Strategy Report. Copies of
any and all of the foregoing items will be available from the Trustee upon
request; provided, that the Trustee shall be permitted to require payment of a
sum sufficient to cover the reasonable costs and expenses of providing such
copies, except in the case of copies provided to the Rating Agencies, which
shall be free of charge. In addition, without limiting the generality of the
foregoing, any Class F, Class G, Class H and Class UR Certificateholder may upon
request from the Trustee obtain a copy of any factual report (including the
Asset Strategy Report) delivered to the Rating Agencies under this Agreement.
<PAGE>
(b) The Master Servicer shall provide a financial market publisher,
which initially shall be Bloomberg, L.P., and shall make available through the
Internet at the Master Servicer's site thereon, on a quarterly basis, on a
computerized database accessible by modem, current information regarding the
items listed on Schedule 1 hereto with respect to the Mortgaged Properties, to
the extent such information due from Mortgagors has been received from the
Mortgagors. If any such information is provided on or before August 15, 1996,
the Master Servicer shall provide to Bloomberg, L.P. and make available through
the Internet as aforesaid, the Prospectus.
SECTION 8.13. Representations and Warranties of the Trustee.
---------------------------------------------
The Trustee hereby represents and warrants to the Depositor, the
Master Servicer, the Special Servicer and the REMIC Administrator and for the
benefit of the Certificateholders, as of the Closing Date, that:
(i) The Trustee is a national banking association, duly organized,
validly existing and in good standing under the laws of the United States.
(ii) The execution and delivery of this Agreement by the Trustee, and
the performance and compliance with the terms of this Agreement by the
Trustee, will not violate the Trustee's charter 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 Trustee 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 Trustee, enforceable against the Trustee 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 the rights of creditors of
national banking associations specifically, and (B) general principles of
equity, regardless of whether such enforcement is considered in a
proceeding in equity or at law.
(v) The Trustee 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 Trustee's good faith and reasonable judgment, is likely to affect
materially and adversely either the ability of the Trustee to perform its
obligations under this Agreement or the financial condition of the Trustee.
(vi) No litigation is pending or, to the best of the Trustee's
knowledge, threatened against the Trustee which would prohibit the Trustee
from entering into this Agreement or, in the Trustee's good faith and
reasonable judgment, is likely to materially and adversely affect either
the ability of the Trustee to perform its obligations under this Agreement
or the financial condition of the Trustee.
(vii) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by the Trustee, or compliance by the Trustee with, this
Agreement or the consummation of the transactions contemplated by this
Agreement, except for any consent, approval, authorization or order which
has not been obtained or cannot be obtained prior to the actual performance
by the Trustee of its obligations under this Agreement, and which, if not
obtained would not have a materially adverse effect on the ability of the
Trustee to perform its obligations hereunder.
[End of Article VIII]
<PAGE>
ARTICLE IX
TERMINATION
SECTION 9.01. Termination Upon Repurchase or Liquidation of All
Mortgage Loans.
------------------------------------------------------
Subject to Section 9.02, the Trust Fund and the respective obligations
and responsibilities under this Agreement of the Depositor, the Master Servicer,
the Special Servicer, the REMIC Administrator and the Trustee (other than the
obligations of the Trustee to provide for and make payments to
Certificateholders as hereafter set forth) shall terminate upon payment (or
provision for payment) to the Certificateholders of all amounts held by or on
behalf of the Trustee and required hereunder to be so paid on the Distribution
Date following the earlier to occur of (i) the purchase by the Master Servicer
or the Depositor of all the Mortgage Loans and each REO Property remaining in
the Trust Fund at a price equal to the greater of (A) the aggregate fair market
value (as determined by an Appraisal) of the Mortgage Loans and all other
property in the Trust Fund (including REO Properties) as of the last day of the
calendar month preceding the Distribution Date upon which the Trust Fund is
anticipated to terminate, and (B) (a) the sum of (i) the aggregate Purchase
Price of all the Mortgage Loans (exclusive of REO Loans) included in the Trust
Fund, and (ii) the Appraised Value of each REO Property, if any, included in the
Trust Fund (such Appraisals in clauses (A) and (B)(a)(ii) to be conducted by an
Independent MAI-designated appraiser selected and mutually agreed upon by the
Master Servicer and the Trustee, and approved by more than 50% of the Voting
Rights of the Classes of Certificates then outstanding (other than the Class UR
Certificates unless the Class UR Certificates are the only Certificates then
outstanding), minus (b) solely in the case where the Master Servicer is
effecting such purchase, the aggregate amount of unreimbursed Advances, together
with any interest accrued and payable to the Master Servicer in respect of such
Advances in accordance with Sections 3.03(d) and 4.03(d) and any unpaid Master
Servicing Fees, remaining outstanding (which items shall be deemed to have been
paid or reimbursed to the Master Servicer in connection with such purchase), and
(ii) the final payment or other liquidation (or any advance with respect
thereto) of the last Mortgage Loan or REO Property remaining in the Trust Fund;
provided, however, that in no event shall the trust created hereby continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Joseph P. Kennedy, the late ambassador of the United States to
the Court of St. James's, living on the date hereof.
<PAGE>
The Master Servicer or the Depositor may, at its option, elect to
purchase all of the Mortgage Loans and each REO Property remaining in the Trust
Fund as contemplated by clause (i) of the preceding paragraph by giving written
notice to the other parties hereto no later than 60 days prior to the
anticipated date of purchase; provided, however, that the Master Servicer or the
Depositor may so elect to purchase all of the Mortgage Loans and each REO
Property remaining in the Trust Fund only on or after the first Distribution
Date on which the aggregate Stated Principal Balances of the Mortgage Loans and
any REO Loans remaining in the Trust Fund is less than 5% of the aggregate
Cut-off Date Principal Balance of the Mortgage Loans set forth in the
Preliminary Statement. In the event that the Master Servicer or the Depositor
purchases all of the Mortgage Loans and each REO Property remaining in the Trust
Fund in accordance with the preceding sentence, the Master Servicer or the
Depositor, as applicable, shall deposit in the Lower-Tier Distribution Account
not later than the P&I Advance Date relating to the Distribution Date on which
the final distribution on the Certificates is to occur, an amount in immediately
available funds equal to the above-described purchase price (exclusive of any
portion thereof payable to any Person other than the Certificateholders pursuant
to Section 3.05(a), which portion shall be deposited in the Certificate
Account). In addition, the Master Servicer shall transfer to the Lower-Tier
Distribution Account all amounts required to be transferred thereto on such P&I
Advance Date from the Certificate Account pursuant to the first paragraph of
Section 3.04(b), together with any other amounts on deposit in the Certificate
Account that would otherwise be held for future distribution. Upon confirmation
that such final deposits have been made, the Trustee shall release or cause to
be released to the Master Servicer or the Depositor, as applicable, the Mortgage
Files for the remaining Mortgage Loans and shall execute all assignments,
endorsements and other instruments furnished to it by the Master Servicer or the
Depositor, as applicable, as shall be necessary to effectuate transfer of the
Mortgage Loans and REO Properties remaining in the Trust Fund.
Notice of any termination shall be given promptly by the Trustee by
letter to Certificateholders and each Rating Agency and, if not previously
notified pursuant to the preceding paragraph, to the other parties hereto mailed
(a) in the event such notice is given in connection with the Master Servicer's
or the Depositor's purchase of all of the Mortgage Loans and each REO Property
remaining in the Trust Fund, not earlier than the 15th day and not later than
the 25th day of the month next preceding the month of the final distribution on
the Certificates, or (b) otherwise during the month of such final distribution
on or before the Determination Date in such month, in each case specifying (i)
the Distribution Date upon which the Trust Fund will terminate and final payment
of the Certificates will be made, (ii) the amount of any such final payment and
(iii) that the Record Date otherwise applicable to such Distribution Date is not
applicable, payments being made only upon presentation and surrender of the
Certificates at the offices of the Certificate Registrar or such other location
therein designated.
<PAGE>
After transferring the Lower-Tier Distribution Amount and the amount
of any Prepayment Premiums and Yield Maintenance Charges distributable pursuant
to Section 4.01(d) to the Upper-Tier Distribution Account pursuant to Section
3.04(b) and upon presentation and surrender of the Certificates by the
Certificateholders on the final Distribution Date, the Trustee shall distribute
to each Certificateholder so presenting and surrendering its Certificates such
Certificateholder's Percentage Interest of that portion of the amounts then on
deposit in the Upper-Tier Distribution Account that are allocable to payments on
the Class of Certificates so presented and surrendered. Amounts on deposit in
the Upper-Tier Distribution Account as of the final Distribution Date (exclusive
of any portion of such amounts payable or reimbursable to any Person pursuant to
clauses (ii)-(iv) of Section 3.05(b)) shall be allocated for the purposes, in
the amounts and in accordance with the priority set forth in Section 4.01(a) and
4.01(e) and shall be distributed in termination and liquidation of the
Uncertificated Lower-Tier Interests and the Class LR Certificates in accordance
with Section 4.01(b) and 4.01(d). Any funds not distributed on such Distribution
Date shall be set aside and held uninvested in trust for the benefit of
Certificateholders not presenting and surrendering their Certificates in the
aforesaid manner, and shall be disposed of in accordance with this Section 9.01
and Section 4.01(d).
SECTION 9.02. Additional Termination Requirements.
-----------------------------------
In the event the Master Servicer or the Depositor purchases all of the
Mortgage Loans and each REO Property remaining in the Trust Fund as provided in
Section 9.01, the Trust Fund shall be terminated in accordance with the
following additional requirements, which are intended to meet the definition of
a "qualified liquidation" in Section 860F(a)(4) of the Code:
(i) the REMIC Administrator shall specify the first day in the 90-day
liquidation period in a statement attached to each of the Upper-Tier
REMIC's and the Lower-Tier REMIC's final Tax Return pursuant to Treasury
regulation Section 1.860F-1 and shall satisfy all requirements of a
qualified liquidation under Section 860F of the Code and any regulations
thereunder;
(ii) during such 90-day liquidation period and at or prior to the time
of making of the final payment on the Certificates, the Trustee shall sell
all of the assets of the Trust Fund to the Master Servicer or the
Depositor, as applicable, for cash; and
(iii) immediately following the making of the final payment on the
Uncertificated Lower-Tier Interests and the Certificates, the Trustee shall
distribute or credit, or cause to be distributed or credited, to the
Holders of the Class LR Certificates (in the case of the Lower-Tier REMIC)
and the Class R Certificates (in the case of the Upper-Tier REMIC) all cash
on hand (other than cash retained to meet claims), and the Trust Fund and
each of the Lower-Tier REMIC and the Upper-Tier REMIC shall terminate at
that time.
[End of Article IX]
<PAGE>
ARTICLE X
ADDITIONAL REMIC PROVISIONS
SECTION 10.01. REMIC Administration.
--------------------
(a) The REMIC Administrator shall make an election to treat each of
the Lower-Tier REMIC and the Upper-Tier REMIC as a REMIC under the Code and, if
necessary, under applicable state law. Such election will be made on Form 1066
or other appropriate federal tax or information return (including Form 8811) or
any appropriate state return for the taxable year ending on the last day of the
calendar year in which the Certificates are issued. For the purposes of the
REMIC election in respect of the Upper-Tier REMIC, each Class of the REMIC
Regular Certificates shall be designated as the "regular interests" and the
Class R Certificates shall be designated as the sole class of "residual
interests" in the Upper-Tier REMIC. For purposes of the REMIC election in
respect of the Lower-Tier REMIC, each Class of Uncertificated Lower-Tier
Interests shall be designated as the "regular interests" and the Class LR
Certificates shall be designated as the sole class of "residual interests" in
the Lower-Tier REMIC. None of the Master Servicer, the Special Servicer, the
REMIC Administrator or the Trustee shall permit the creation of any "interests"
(within the meaning of Section 860G of the Code) in the Lower-Tier REMIC or the
Upper-Tier REMIC other than the foregoing interests.
(b) The Closing Date is hereby designated as the "startup day" of each
of the Lower-Tier REMIC and the Upper-Tier REMIC within the meaning of Section
860G(a)(9) of the Code.
(c) The REMIC Administrator shall act on behalf of each REMIC in
relation to any tax matter or controversy involving either REMIC and shall
represent each REMIC in any administrative or judicial proceeding relating to an
examination or audit by any governmental taxing authority with respect thereto.
The legal expenses, including without limitation attorneys' or accountants'
fees, and costs of any such proceeding and any liability resulting therefrom
shall be expenses of the Trust Fund and the REMIC Administrator shall be
entitled to reimbursement therefor out of amounts attributable to the Mortgage
Loans and any REO Properties on deposit in the Certificate Account as provided
by Section 3.05(a) unless such legal expenses and costs are incurred by reason
of the REMIC Administrator's willful misfeasance, bad faith or negligence. The
Holder of the largest Percentage Interest in each of the Class R and Class LR
Certificates shall be designated, in the manner provided under Treasury
Regulations Section 1.860F-4(d) and temporary Treasury Regulations Section
301.6231(a)(7)-IT, as the "tax matters person" of the Upper-Tier REMIC and the
Lower-Tier REMIC, respectively. By their acceptance thereof, the Holders of the
largest Percentage Interest in each of the Class R and Class LR Certificates
hereby agrees to irrevocably appoint the REMIC Administrator as their agent to
perform all of the duties of the "tax matters person" for the Upper-Tier REMIC
and the Lower-Tier REMIC, respectively.
<PAGE>
(d) The REMIC Administrator shall prepare or cause to be prepared all
of the Tax Returns that it determines are required with respect to each of the
Lower-Tier REMIC and the Upper-Tier REMIC created hereunder and deliver such Tax
Returns in a timely manner to the Trustee and the Trustee shall sign and file
such Tax Returns in a timely manner. The expenses of preparing such returns
shall be borne by the REMIC Administrator without any right of reimbursement
therefor. The REMIC Administrator agrees to indemnify and hold harmless the
Trustee with respect to any tax or liability arising from the Trustee's signing
of Tax Returns that contain errors or omissions.
(e) The REMIC Administrator shall provide (i) to any Transferor of a
Class R Certificate or Class LR Certificate such information as is necessary for
the application of any tax relating to the transfer of such Class R Certificate
or Class LR Certificate to any Person who is a Disqualified Organization, or in
the case of a Transfer to an Agent thereof, to such Agent, (ii) to the Trustee
and the Trustee shall forward to the Certificateholders such information or
reports as are required by the Code or the REMIC Provisions including reports
relating to interest, original issue discount and market discount or premium
(using the Prepayment Assumption) and (iii) to the Internal Revenue Service the
name, title, address and telephone number of the "tax matters person" who will
serve as the representative of each of the Lower-Tier REMIC and the Upper-Tier
REMIC created hereunder.
(f) The REMIC Administrator shall take such actions and shall cause
the Trust Fund to take such actions as are reasonably within the REMIC
Administrator's control and the scope of its duties more specifically set forth
herein as shall be necessary to maintain the status of each of the Lower-Tier
REMIC and the Upper-Tier REMIC as a REMIC under the REMIC Provisions (and the
Trustee shall assist the REMIC Administrator, to the extent reasonably requested
by the REMIC Administrator to do so). None of the Master Servicer, the Special
Servicer or the REMIC Administrator shall knowingly or intentionally take any
action, cause the Trust Fund to take any action or fail to take (or fail to
cause to be taken) any action reasonably within its control and the scope of
duties more specifically set forth herein, that, under the REMIC Provisions, if
taken or not taken, as the case may be, could (i) endanger the status of either
the Lower-Tier REMIC or the Upper-Tier REMIC as a REMIC or (ii) result in the
imposition of a tax upon either the Lower-Tier REMIC or the Upper-Tier REMIC or
the Trust Fund (including but not limited to the tax on "prohibited
transactions" as defined in Section 860F(a)(2) of the Code and the tax on
contributions to a REMIC set forth in Section 860G(d) of the Code, but not
including the tax on "net income from foreclosure property") (either such event,
an "Adverse REMIC Event") unless the REMIC Administrator receives an Opinion of
Counsel (at the expense of the party seeking to take such action or, if such
party fails to pay such expense, and the REMIC Administrator determines that
taking such action is in the best interest of the Trust Fund and the
Certificateholders, at the expense of the Trust Fund, but in no event at the
expense of the REMIC Administrator or the Trustee) to the effect that the
contemplated action will not, with respect to the Trust Fund, the Lower-Tier
REMIC or the Upper-Tier REMIC created hereunder, endanger such status or, unless
the REMIC Administrator determines in its sole discretion to indemnify the Trust
Fund against such tax, result in the imposition of such a tax (not including a
tax on "net income from foreclosure property"). The Trustee shall not take or
fail to take any action (whether or not authorized hereunder) as to which the
REMIC Administrator has advised it in writing that it has received an Opinion of
Counsel to the effect that an Adverse REMIC Event could occur with respect to
such action. In addition, prior to taking any action with respect to the Trust
Fund either the Lower-Tier REMIC or the Upper-Tier REMIC or any of its assets,
or causing the Trust Fund or either the Lower-Tier REMIC or the Upper-Tier REMIC
to take any action, which is not expressly permitted under the terms of this
Agreement, the Trustee will consult with the REMIC Administrator or its
designee, in writing, with respect to whether such action could cause an Adverse
REMIC Event to occur with respect to the Trust Fund or either the Lower-Tier
REMIC or the Upper-Tier REMIC and the Trustee shall not take any such action or
cause the Trust Fund or either the Lower-Tier REMIC or the Upper-Tier REMIC to
take any such action as to which the REMIC Administrator has advised it in
writing that an Adverse REMIC Event could occur. The REMIC Administrator may
consult with counsel to make such written advice, and the cost of same shall be
borne by the party seeking to take the action not expressly permitted by this
Agreement, but in no event at the expense of the REMIC Administrator. At all
times as may be required by the Code, the REMIC Administrator will to the extent
within its control and the scope of its duties more specifically set forth
herein, maintain substantially all of the assets of each of the Lower-Tier REMIC
and the Upper-Tier REMIC as "qualified mortgages" as defined in Section
860G(a)(3) of the Code and "permitted investments" as defined in Section
860G(a)(5) of the Code.
<PAGE>
(g) In the event that any applicable federal, state or local tax,
including interest, penalties or assessments, additional amounts or additions to
tax, is imposed on either the Lower-Tier REMIC or the Upper-Tier REMIC, such tax
shall be charged against amounts otherwise distributable to the Holders of the
Certificates, except as provided in the last sentence of this Section 10.01(g);
provided, that with respect to the estimated amount of tax imposed on any "net
income from foreclosure property" pursuant to Code Section 860G(d) or any
similar tax imposed by a state or local tax authority, the Special Servicer
shall retain in the related REO Account a reserve for the payment of such taxes
in such amounts and at such times as it shall deem appropriate (or as advised by
the REMIC Administrator in writing), and shall remit to the REMIC Administrator
such reserved amounts as the REMIC Administrator shall request in order to pay
such taxes. Except as provided in the preceding sentence, the Master Servicer
shall pay to the REMIC Administrator upon request from the Certificate Account
sufficient funds to pay or provide for the payment of, and to actually pay, such
tax as is estimated to be legally owed by either the Lower-Tier REMIC or the
Upper-Tier REMIC (but such authorization shall not prevent the REMIC
Administrator from contesting, at the expense of the Trust Fund (other than as a
consequence of a breach of its obligations under this Agreement), any such tax
in appropriate proceedings, and withholding payment of such tax, if permitted by
law, pending the outcome of such proceedings). The REMIC Administrator is hereby
authorized to and shall segregate, into a separate non-interest bearing account,
the net income from any "prohibited transaction" under Code Section 860F(a) or
the amount of any taxable contribution to the Lower-Tier REMIC or Upper-Tier
REMIC after the Startup Day that is subject to tax under Code Section 860G(d)
and use such income or amount, to the extent necessary, to pay such prohibited
transactions tax. To the extent that any such tax (other than any such tax paid
in respect of "net income from foreclosure property") is paid to the Internal
Revenue Service or applicable state or local tax authorities, the REMIC
Administrator shall retain an equal amount from future amounts otherwise
distributable to the Holders of Residual Certificates (as applicable) and shall
distribute such retained amounts, (x) in the case of the Lower-Tier REMIC, to
the Holders of the Uncertificated Lower-Tier Interests to the extent they are
fully reimbursed for any Collateral Support Deficit arising therefrom and then
to the Holders of the Class LR Certificates in the manner specified in Section
4.01(b) and (y) in the case of the Upper-Tier REMIC, to the Holders of Class A,
Class B, Class C, Class D, Class E, Class F, Class G, Class H, Class UR and
Class IO Certificates, as applicable, in the manner specified in Section
4.01(a), to the extent they are fully reimbursed for any Collateral Support
Deficit arising therefrom and then to the Holders of the Class R Certificates.
The Trustee, the REMIC Administrator, the Master Servicer or the Special
Servicer shall not be responsible for any taxes imposed on either the Lower-Tier
REMIC or the Upper-Tier REMIC except to the extent such taxes arise as a
consequence of a breach of their respective obligations under this Agreement.
(h) The Trustee and the REMIC Administrator shall, for federal income
tax purposes, maintain books and records with respect to each of the Lower-Tier
REMIC and the Upper-Tier REMIC on a calendar year and on an accrual basis or as
otherwise may be required by the REMIC Provisions.
<PAGE>
(i) Following the Startup Day, neither the REMIC Administrator nor the
Trustee shall accept any contributions of assets to the Lower-Tier REMIC and the
Upper-Tier REMIC unless the REMIC Administrator and the Trustee shall have
received an Opinion of Counsel (at the expense of the party seeking to make such
contribution) to the effect that the inclusion of such assets in the Lower-Tier
REMIC or the Upper-Tier REMIC will not (i) cause either the Lower-Tier REMIC or
the Upper-Tier REMIC to fail to qualify as a REMIC at any time that any
Uncertificated Lower-Tier Interests or Certificates are outstanding; or (ii)
subject either the Trust Fund, the Lower-Tier REMIC or the Upper-Tier REMIC to
any tax under the REMIC Provisions or other applicable provisions of federal,
state and local law or ordinances.
(j) Neither the REMIC Administrator nor the Trustee shall enter into
any arrangement by which the Trust Fund or either the Lower-Tier REMIC or the
Upper-Tier REMIC will receive a fee or other compensation for services nor
permit the Trust Fund or either the Lower-Tier REMIC or the Upper-Tier REMIC to
receive any income from assets other than "qualified mortgages" as defined in
Section 860G(a)(3) of the Code or "permitted investments" as defined in Section
860G(a)(5) of the Code.
(k) Solely for the purposes of Section 1.860G-1(a)(4)(iii) of the
Treasury Regulations, the "latest possible maturity date" by which the
Certificate Balance of each Class of Certificates representing a "regular
interest" in the Upper-Tier REMIC and by which the Lower-Tier Principal Amount
of each Class of Uncertificated Lower-Tier Interests representing a "regular
interest" in the Lower-Tier REMIC, would be reduced to zero is November 20,
2015, which is the Distribution Date immediately following the latest scheduled
maturity of any Mortgage Loan.
(l) Within 30 days after the Closing Date, the REMIC Administrator
shall prepare and file with the Internal Revenue Service Form 8811, "Information
Return for Real Estate Mortgage Investment Conduits (REMIC) and Issuers of
Collateralized Debt Obligations" for the Upper-Tier REMIC.
(m) Neither the Trustee nor the REMIC Administrator shall sell,
dispose of or substitute for any of the Mortgage Loans (except in connection
with (i) the default, imminent default or foreclosure of a Mortgage Loan,
including but not limited to, the acquisition or sale of a Mortgaged Property
acquired by deed in lieu of foreclosure, (ii) the bankruptcy of the Trust Fund,
(iii) the termination of the Trust Fund pursuant to Article IX of this Agreement
or (iv) a purchase of Mortgage Loans pursuant to Article II or III of this
Agreement) or acquire any assets for the Trust Fund or either the Lower-Tier
REMIC or Upper-Tier REMIC or sell or dispose of any investments in the
Certificate Account, the Distribution Accounts or the REO Account for gain
unless it has received an Opinion of Counsel that such sale, disposition or
substitution will not (a) affect adversely the status of either the Lower-Tier
REMIC or the Upper-Tier REMIC as a REMIC or (b) unless the REMIC Administrator
has determined in its sole discretion to indemnify the Trust Fund against such
tax, cause the Trust Fund or either the Lower-Tier REMIC or Upper-Tier REMIC to
be subject to a tax on "prohibited transactions" pursuant to the REMIC
Provisions.
<PAGE>
SECTION 10.02. Depositor, Master Servicer, Special Servicer and
Trustee to Cooperate with REMIC Administrator.
-----------------------------------------------------
(a) The Depositor shall provide or cause to be provided to the REMIC
Administrator, within ten (10) days after the Closing Date, all information or
data that the REMIC Administrator reasonably determines to be relevant for tax
purposes as to the valuations and Issue Prices of the Certificates, including,
without limitation, the price, yield, Prepayment Assumption and projected cash
flow of the Certificates.
(b) The Master Servicer, the Special Servicer and the Trustee shall
each furnish such reports, certifications and information, and access to such
books and records maintained thereby, as may relate to the Certificates or the
Trust Fund and as shall be reasonably requested by the REMIC Administrator in
order to enable it to perform its duties hereunder.
SECTION 10.03. Fees and Expenses of the REMIC Administrator.
--------------------------------------------
[Reserved]
SECTION 10.04. Use of Agents.
-------------
The REMIC Administrator may execute any of its obligations and duties
hereunder either directly or by or through agents or attorneys. The REMIC
Administrator shall not be relieved of any of its duties or obligations
hereunder by virtue of the appointment of any such agents or attorneys.
<PAGE>
SECTION 10.05. Representations and Warranties of the REMIC
Administrator.
---------------------------------------------------
The REMIC Administrator hereby represents and warrants to the Trustee,
for its own benefit and the benefit of the Certificateholders, and to the
Depositor, the Master Servicer and the Special Servicer, as of the Closing Date,
that:
(i) The REMIC Administrator is a corporation duly organized, validly
existing and in good standing under the laws of the State of Texas.
(ii) The execution and delivery of this Agreement by the REMIC
Administrator, and the performance and compliance with the terms of this
Agreement by the REMIC Administrator, will not violate the REMIC
Administrator's charter 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 REMIC Administrator 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 REMIC Administrator, enforceable against the
REMIC Administrator 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 REMIC Administrator 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 REMIC Administrator's good faith and reasonable judgment,
is likely to affect materially and adversely either the ability of the
REMIC Administrator to perform its obligations under this Agreement or the
financial condition of the REMIC Administrator.
(vi) No litigation is pending or, to the best of the REMIC
Administrator's knowledge, threatened against the REMIC Administrator which
would prohibit the REMIC Administrator from entering into this Agreement
or, in the REMIC Administrator's good faith and reasonable judgment, is
likely to materially and adversely affect either the ability of the REMIC
Administrator to perform its obligations under this Agreement or the
financial condition of the REMIC Administrator.
(vii) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by the REMIC Administrator, or compliance by the REMIC
Administrator with, this Agreement or the consummation of the transactions
contemplated by this Agreement, except for any consent, approval,
authorization or order which has not been obtained or cannot be obtained
prior to the actual performance by the REMIC Administrator of its
obligations under this Agreement, and which, if not obtained would not have
a materially adverse effect on the ability of the REMIC Administrator to
perform its obligations hereunder.
[End of Article X]
<PAGE>
ARTICLE XI
MISCELLANEOUS PROVISIONS
SECTION 11.01. Amendment.
---------
(a) This Agreement may be amended from time to time by the parties
hereto, without the consent of any of the Certificateholders:
(i) to cure any ambiguity,
(ii) to correct or supplement any provisions herein or therein, which
may be inconsistent with any other provisions herein or therein or to
correct any error,
(iii) to modify, eliminate or add to any of its provisions to such
extent as shall be necessary to maintain the qualification of either the
Lower-Tier REMIC or the Upper-Tier REMIC as a REMIC at all times that any
Uncertificated Lower-Tier Interest or Certificate is outstanding or to
avoid or minimize the risk of the imposition of any tax on the Trust Fund
or Lower-Tier REMIC or Upper-Tier REMIC pursuant to the Code that would be
a claim against the Trust Fund or Lower-Tier REMIC or Upper-Tier REMIC,
provided that the Trustee has received an Opinion of Counsel to the effect
that (A) such action is necessary or desirable to maintain such
qualification or to avoid or minimize the risk of the imposition of any
such tax, (B) such action will not adversely affect in any material respect
the interests of any Certificateholder, and (C) such change shall not
result in the withdrawal, downgrade or qualification of the then-current
rating assigned to any Class of Certificates, as evidenced by a letter from
each Rating Agency to such effect,
(iv) to change the timing and/or nature of deposits into the
Certificate Account or the Distribution Accounts or to change the name in
which the Certificate Account is maintained, provided that (A) the P&I
Advance Date shall in no event be later than the related Distribution Date,
(B) such change shall not, as evidenced by an Opinion of Counsel, adversely
affect in any material respect the interests of any Certificateholder and
(C) such change shall not result in the withdrawal, downgrade or
qualification of the then-current rating assigned to any Class of
Certificates, as evidenced by a letter from each Rating Agency to such
effect,
(v) to modify, eliminate or add to the provisions of Section 5.02(d)
or any other provision hereof restricting transfer of the Residual
Certificates by virtue of their being the REMIC "residual interests,"
provided that (A) such change shall not result in the withdrawal, downgrade
or qualification of the then-current rating assigned to any Class of
Certificates, as evidenced by a letter from each Rating Agency to such
effect, and (B) such change shall not, as evidenced by an Opinion of
Counsel, cause either the Trust Fund, the Lower-Tier REMIC, the Upper-Tier
REMIC or any of the Certificateholders (other than the Transferor) to be
subject to a federal tax caused by a Transfer to a Person that is a
Disqualified Organization or a Non-U.S. Person,
<PAGE>
(vi) to make any other provisions with respect to matters or questions
arising under this Agreement which shall not be materially inconsistent
with the provisions of this Agreement, provided that such action shall not,
as evidenced by an Opinion of Counsel, adversely affect in any material
respect the interests of any Certificateholder not consenting thereto, and
(vii) to amend or supplement any provision hereof to the extent
necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency.
(b) This Agreement may also be amended from time to time by the
parties hereto with the consent of the Holders of Certificates evidencing in the
aggregate not less than 66% of the Percentage Interests of each Class of
Certificates affected thereby for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Agreement or
of modifying in any manner the rights of the Holders of Certificates of such
Class; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate, or
(ii) reduce the aforesaid percentage of Certificates of any Class the
Holders of which are required to consent to any such amendment, in any such
case without the consent of the Holders of all Certificates of such Class
then outstanding.
(c) Notwithstanding the foregoing, the Trustee will not be entitled to
consent to any amendment hereto without having first received an Opinion of
Counsel to the effect that such amendment or the exercise of any power granted
to the Master Servicer, the Depositor, the Special Servicer, the REMIC
Administrator, the Trustee or any other specified person in accordance with such
amendment will not result in the imposition of a tax on the Trust Fund, the
Lower-Tier REMIC or the Upper-Tier REMIC or cause the Lower-Tier REMIC or
Upper-Tier REMIC to fail to qualify as a REMIC.
(d) Promptly after the execution of any such amendment, the Trustee
shall furnish a statement describing the amendment to each Certificateholder and
each Rating Agency.
(e) It shall not be necessary for the consent of Certificateholders
under this Section 11.01 to approve the particular form of any proposed
amendment, but it shall be sufficient if such consent shall approve the
substance thereof. The manner of obtaining such consents and of evidencing the
authorization of the execution thereof by Certificateholders shall be subject to
such reasonable regulations as the Trustee may prescribe.
<PAGE>
(f) The Trustee may, but shall not be obligated to, enter into any
amendment pursuant to this Section that affects its rights, duties and
immunities under this Agreement or otherwise.
(g) The cost of any Opinion of Counsel to be delivered pursuant to
Section 11.01(a) or (c) shall be borne by the Person seeking the related
amendment, except that if the Master Servicer or the Trustee requests any
amendment of this Agreement in furtherance of the rights and interests of
Certificateholders, the cost of any Opinion of Counsel required in connection
therewith pursuant to Section 11.01(a) or (c) shall be payable out of the
Certificate Account.
SECTION 11.02. Recordation of Agreement; Counterparts.
--------------------------------------
(a) To the extent permitted by applicable law, this Agreement is
subject to recordation in all appropriate public offices for real property
records in all the counties or other comparable jurisdictions in which any or
all of the properties subject to the Mortgages are situated, and in any other
appropriate public recording office or elsewhere, such recordation to be
effected by the Master Servicer at the expense of the Depositor on direction by
the Trustee, but only upon direction accompanied by an Opinion of Counsel (the
cost of which shall be paid by the Depositor) to the effect that such
recordation materially and beneficially affects the interests of the
Certificateholders.
(b) For the purpose of facilitating the recordation of this Agreement
as herein provided and for other purposes, this Agreement may be executed
simultaneously in any number of counterparts, each of which counterparts shall
be deemed to be an original, and such counterparts shall constitute but one and
the same instrument.
SECTION 11.03. Limitation on Rights of Certificateholders.
------------------------------------------
(a) The death or incapacity of any Certificateholder shall not operate
to terminate this Agreement or the Trust Fund, nor entitle such
Certificateholder's legal representatives or heirs to claim an accounting or to
take any action or proceeding in any court for a partition or winding up of the
Trust Fund, nor otherwise affect the rights, obligations and liabilities of the
parties hereto or any of them.
(b) No Certificateholder shall have any right to vote (except as
expressly provided for herein) or in any manner otherwise control the operation
and management of the Trust Fund, or the obligations of the parties hereto, nor
shall anything herein set forth, or contained in the terms of the Certificates,
be construed so as to constitute the Certificateholders from time to time as
partners or members of an association; nor shall any Certificateholder be under
any liability to any third party by reason of any action taken by the parties to
this Agreement pursuant to any provision hereof.
<PAGE>
(c) No Certificateholder shall have any right by virtue of any
provision of this Agreement to institute any suit, action or proceeding in
equity or at law upon or under or with respect to this Agreement or any Mortgage
Loan, unless, with respect to any suit, action or proceeding upon or under or
with respect to this Agreement, such Holder previously shall have given to the
Trustee a written notice of default hereunder, and of the continuance thereof,
as hereinbefore provided, and unless also (except in the case of a default by
the Trustee) the Holders of Certificates of any Class evidencing not less than
25% of the related Percentage Interests in such Class shall have made written
request upon the Trustee to institute such action, suit or proceeding in its own
name as Trustee hereunder and shall have offered to the Trustee such reasonable
indemnity as it may require against the costs, expenses and liabilities to be
incurred therein or thereby, and the Trustee, for 60 days after its receipt of
such notice, request and offer of indemnity, shall have neglected or refused to
institute any such action, suit or proceeding. The Trustee shall be under no
obligation to exercise any of the trusts or powers vested in it hereunder or to
institute, conduct or defend any litigation hereunder or in relation hereto at
the request, order or direction of any of the Holders of Certificates unless
such Holders have offered to the Trustee reasonable security against the costs,
expenses and liabilities which may be incurred therein or hereby. It is
understood and intended, and expressly covenanted by each Certificateholder with
every other Certificateholder and the Trustee, that no one or more Holders of
Certificates shall have any right in any manner whatsoever by virtue of any
provision of this Agreement to affect, disturb or prejudice the rights of the
Holders of any other of such Certificates, or to obtain or seek to obtain
priority over or preference to any other such Holder, which priority or
preference is not otherwise provided for herein, or to enforce any right under
this Agreement, except in the manner herein provided and for the equal, ratable
and common benefit of all Certificateholders. For the protection and enforcement
of the provisions of this Section 11.03(c), each and every Certificateholder and
the Trustee shall be entitled to such relief as can be given either at law or in
equity.
SECTION 11.04. Governing Law.
-------------
This Agreement and the Certificates shall be construed in accordance
with the internal laws of the State of New York applicable to agreements made
and to be performed in said State, and the obligations, rights and remedies of
the parties hereunder shall be determined in accordance with such laws.
<PAGE>
SECTION 11.05. Notices.
-------
Any communications provided for or permitted hereunder shall be in
writing and, unless otherwise expressly provided herein, shall be deemed to have
been duly given if personally delivered at or mailed by registered mail, postage
prepaid (except for notices to the Trustee which shall be deemed to have been
duly given only when received), to: (i) in the case of the Depositor,
NationsLink Funding Corporation, NationsBank Corporate Center, 100 North Tryon
Street, Charlotte, North Carolina 28255, Attention: S. Trezevant Moore, Jr.,
with a copy to Robert W. Long, Esq., telecopy number: (704) 386-6453; (ii) in
the case of the Master Servicer, AMRESCO Management, Inc., 235 Peachtree Street,
Suite 900, Atlanta, Georgia 30303, Attention: Henry B. Garmon, telecopy number:
(404) 654-2478; (iii) in the case of the Special Servicer, AMRESCO Management,
Inc., 1845 Woodall Rodgers Freeway, Suite 1700, Dallas, Texas 75201, Attention:
Tom Goodson, telecopy number: (214) 969-5478; (iv) in the case of the REMIC
Administrator, NationsBanc Mortgage Capital Corporation, NationsBank Corporate
Center, 100 North Tryon Street, Charlotte, North Carolina 28255, Attention: S.
Trezevant Moore, Jr., with a copy to Robert W. Long, Esq., telecopy number:
(704) 386-6453; (v) in the case of the Trustee, The Chase Manhattan Bank, N.A.,
4 Chase MetroTech Center, Third Floor, Brooklyn, New York 11245, Attention:
Global Trust Services, telecopy number: (718) 242-3529; and (iv) in the case of
the Rating Agencies, (A) Duff & Phelps Credit Rating Co., 55 East Monroe Street,
Chicago, Illinois 60603, Attention: Structured Finance-Commercial Real Estate
Monitoring, telecopy number: (312) 263-2852, and (B) Standard & Poor's Ratings
Services, 26 Broadway, New York, New York 10004, Attention: Commercial Mortgage
Surveillance Group, telecopy number: (212) 412-0539; or as to each such Person
such other address as may hereafter be furnished by such Person to the parties
hereto in writing. Any communication required or permitted to be delivered to a
Certificateholder shall be deemed to have been duly given when mailed first
class, postage prepaid, to the address of such Holder as shown in the
Certificate Register. Any notice so mailed within the time prescribed in this
Agreement shall be conclusively presumed to have been duly given, whether or not
the Certificateholder receives such notice.
SECTION 11.06. Severability of Provisions.
--------------------------
If any one or more of the covenants, agreements, provisions or terms
of this Agreement shall be for any reason whatsoever held invalid, then such
covenants, agreements, provisions or terms shall be deemed severable from the
remaining covenants, agreements, provisions or terms of this Agreement and shall
in no way affect the validity or enforceability of the other provisions of this
Agreement or of the Certificates or the rights of the Holders thereof.
<PAGE>
SECTION 11.07. Grant of a Security Interest.
----------------------------
The Depositor intends that the conveyance of the Depositor's right,
title and interest in and to the Mortgage Loans pursuant to this Agreement shall
constitute a sale and not a pledge of security for a loan. If such conveyance is
deemed to be a pledge of security for a loan, however, the Depositor intends
that the rights and obligations of the parties to such loan shall be established
pursuant to the terms of this Agreement. The Depositor also intends and agrees
that, in such event, (i) the Depositor shall be deemed to have granted to the
Trustee (in such capacity) a first priority security interest in the Depositor's
entire right, title and interest in and to the assets comprising the Trust Fund,
including without limitation, the Mortgage Loans, all principal and interest
received or receivable with respect to the Mortgage Loans (other than principal
and interest payments due and payable prior to the Cut-off Date and Principal
Prepayments received prior to the Cut-off Date), all amounts held from time to
time in the Certificate Account, the Distribution Accounts and, if established
the REO Account, and all reinvestment earnings on such amounts, and all of the
Depositor's right, title and interest in and to the proceeds of any title,
hazard or other Insurance Policies related to such Mortgage Loans, and (ii) this
Agreement shall constitute a security agreement under applicable law. The
Depositor shall file or cause to be filed, as a precautionary filing, a Form
UCC-1 substantially in the form attached as Exhibit E hereto in all appropriate
locations promptly following the initial issuance of the Certificates, and the
Master Servicer shall prepare and file at each such office, and the Trustee
shall execute, continuation statements thereto, in each case within six months
prior to the fifth anniversary of the immediately preceding filing. The
Depositor shall cooperate in a reasonable manner with the Trustee and the Master
Servicer in preparing and filing such continuation statements. This Section
11.07 shall constitute notice to the Trustee pursuant to any of the requirements
of the applicable UCC.
SECTION 11.08. Successors and Assigns; Beneficiaries.
-------------------------------------
The provisions of this Agreement shall be binding upon and inure to
the benefit of the respective successors and assigns of the parties hereto, and
all such provisions shall inure to the benefit of the Certificateholders. No
other person, including, without limitation, any Mortgagor, shall be entitled to
any benefit or equitable right, remedy or claim under this Agreement.
SECTION 11.09. Article and Section Headings.
----------------------------
The article and section headings herein are for convenience of
reference only, and shall not limit or otherwise affect the meaning hereof.
<PAGE>
SECTION 11.10. Notices to the Rating Agencies.
(a) The Trustee shall use reasonable efforts promptly to provide
notice to each Rating Agency with respect to each of the following of which it
has actual knowledge:
(i) any material change or amendment to this Agreement;
(ii) the occurrence of any Event of Default that has not been cured;
(iii) the resignation or termination of the Master Servicer, the
Special Servicer or the REMIC Administrator;
(iv) any change in the location of the Distribution Accounts;
(v) the repurchase of Mortgage Loans by the Mortgage Loan Seller
pursuant to Section 3 of the Mortgage Loan Purchase Agreement; and
(vi) the final payment to any Class of Certificateholders.
(b) The Master Servicer shall use reasonable efforts promptly to
provide notice to each Rating Agency with respect to each of the following of
which it has actual knowledge:
(i) the resignation or removal of the Trustee;
(ii) any change in the location of the Certificate Account; and
(iii) any event that would result in the voluntary or involuntary
termination of any insurance of the accounts of the Trustee.
(c) Each of the Master Servicer and the Special Servicer shall
promptly furnish to each Rating Agency copies of the following:
(i) each of its annual statements as to compliance described in
Section 3.13;
(ii) inspection reports and other items delivered to each of the
Master Servicer and Special Servicer pursuant to Section 3.12(a) and
3.12(b);
(iii) each of its annual independent public accountants' servicing
reports described in Section 3.14;
(iv) a Collection Report with respect to each Distribution Date
required to be delivered pursuant to Section 4.02(b); and
(v) each waiver and consent provided pursuant to Section 3.08.
(d) The Trustee shall promptly furnish to each Rating Agency a copy of
the statement to Certificateholders distributed pursuant to Section 4.02(a).
[End of Article XI]
[SIGNATURES COMMENCE ON FOLLOWING PAGE]
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused their names
to be signed hereto by their respective officers thereunto duly authorized, in
each case as of the day and year first above written.
NATIONSLINK FUNDING CORPORATION
Depositor
By:-------------------------------
Name:-----------------------------
Title:----------------------------
AMRESCO MANAGEMENT, INC.
Master Servicer
By:-------------------------------
Name:-----------------------------
Title:----------------------------
AMRESCO MANAGEMENT, INC.
Special Servicer
By:-------------------------------
Name:-----------------------------
Title:----------------------------
THE CHASE MANHATTAN BANK, N.A.
Trustee
By:-------------------------------
Name:-----------------------------
Title:----------------------------
NATIONSBANC MORTGAGE CAPITAL CORPORATION
REMIC Administrator
By:--------------------------------
Name:------------------------------
Title:-----------------------------
<PAGE>
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the ---- day of -------------------, 1996 before me, a notary
public in and for said State, personally appeared ----------------------- known
to me to be a --------------------- of NationsLink Funding Corporation one of
the corporations that executed the within instrument, and also known to me to be
the person who executed it on behalf of such corporation, and acknowledged to me
that such corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
------------------------------
Notary Public
[Notarial Seal]
<PAGE>
STATE OF ------------- )
) ss.:
COUNTY OF ------------ )
On the ----- day of ------------, 1996, before me, a notary public in
and for said State, personally appeared ----------------------------- known to
me to be a ----------------------- of AMRESCO Management, Inc., one of the
corporations that executed the within instrument, and also known to me to be the
person who executed it on behalf of such corporation, and acknowledged to me
that such corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
------------------------------
Notary Public
[Notarial Seal]
<PAGE>
STATE OF ------------)
) ss.:
COUNTY OF -----------)
On the ---- day of -------------, 1996 before me, a notary public in
and for said State, personally appeared ------------------- known to me to be a
- --------- of AMRESCO Management, Inc., one of the corporations that executed
the within instrument, and also known to me to be the person who executed it on
behalf of such corporation, and acknowledged to me that such corporation
executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
------------------------------
Notary Public
[Notarial Seal]
<PAGE>
STATE OF ------------)
) ss.:
COUNTY OF -----------)
On the ---- day of -------------, 1996 before me, a notary public in
and for said State, personally appeared ------------------ known to me to be a
- ------ of The Chase Manhattan Bank, N.A., the national banking association that
executed the within instrument, and also known to me to be the person who
executed it on behalf of such national banking association, and acknowledged to
me that such national banking association executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
------------------------------
Notary Public
[Notarial Seal]
<PAGE>
STATE OF--------------)
) ss.:
COUNTY OF ------------)
On the ---- day of -------------, 1996 before me, a notary public in
and for said State, personally appeared ------------------- known to me to be a
- ----- of NationsBanc Mortgage Capital Corporation, one of the corporations
that executed the within instrument, and also known to me to be the person who
executed it on behalf of such corporation, and acknowledged to me that such
corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
------------------------------
Notary Public
[Notarial Seal]
<PAGE>
Schedule 1
Computerized Database Information
Field
Loan Number
Property Type
Property City and State
Year Built
Year Renovated
Most recent occupancy (estimate)
Net Rentable Area (SF)
Number of units (beds)
Original Principal Balance
Anticipated Loan Balance at Maturity
Prepayment Penalty
Current Interest Rate
Current Monthly Debt Service
Current DSCR
Appraised Value (MAI)
Original Balance LTV (MAI)
End of Term Balance LTV (MAI)
Reserve Fund Balance (Current)
Origination Date
Maturity Date
(Original) Loan Balance Per SF
or Per Unit
Current Unpaid Principal Balance
EXHIBIT A-1
NATIONSLINK FUNDING CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 1996-1, CLASS A-1
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS ON THE
CERTIFICATES AND THE PORTION OF COLLATERAL SUPPORT DEFICIT ALLOCABLE TO THIS
CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE
LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN
ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE TRUSTEE. THIS CERTIFICATE
CONSTITUTES A REMIC REGULAR INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED.
[Unless this certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the Certificate
Registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.]1
<TABLE>
<CAPTION>
<S> <C>
PASS-THROUGH RATE: 7.533% APPROXIMATE AGGREGATE SCHEDULED PRINCIPAL BALANCE OF THE
MORTGAGE LOANS AFTER DEDUCTING PAYMENTS DUE AND PREPAYMENTS
DENOMINATION: [$____________]2 RECEIVED ON OR BEFORE CUT-OFF DATE: $322,639,635
[Set forth on Schedule A]3
MASTER SERVICER: AMRESCO MANAGEMENT, INC.
DATE OF POOLING AND SERVICING AGREEMENT: AS
OF MAY 1, 1996 SPECIAL SERVICER: AMRESCO MANAGEMENT, INC.
CUT-OFF DATE: MAY 1, 1996, EXCEPT AS TRUSTEE: THE CHASE MANHATTAN BANK, N.A.
DESCRIBED IN THE POOLING AND SERVICING
AGREEMENT REMIC ADMINISTRATOR: NATIONSBANC MORTGAGE CAPITAL CORPORATION
CLOSING DATE: MAY 16, 1996 CUSIP NO. 63859CAA1
FIRST DISTRIBUTION DATE: CERTIFICATE NO.: A-1-1
JUNE 20, 1996
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE
OF THE CLASS A-1 CERTIFICATES
AS OF THE CLOSING DATE: $70,980,719
<FN>
1 If this Certificate represents a Book-Entry Certificate registered in the name
of Cede & Co., it shall have this legend.
2 If this Certificate represents a Definitive Certificate, the Denomination
shall be specified on the face hereof.
3 If this Certificate represents a Book-Entry Certificate, its Denomination
shall be set forth on Schedule A attached hereto.
</FN>
</TABLE>
<PAGE>
CLASS A-1 CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of fixed rate commercial and multifamily mortgage loans (the "Mortgage
Loans"), all payments on or collections in respect of the Mortgage Loans due
after the Cut-Off Date, all REO Properties and revenues received in respect
thereof, the mortgagee's rights under the Insurance Policies, any Assignment of
Leases, and any guaranties, escrow accounts or other collateral as security for
the Mortgage Loans, and such amounts as shall from time to time be held in the
Certificate Account, the Distribution Accounts, and the REO Accounts, formed and
sold by
NATIONSLINK FUNDING CORPORATION
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN NATIONSLINK
FUNDING CORPORATION, THE MASTER SERVICER, THE SPECIAL SERVICER, THE TRUSTEE, THE
REMIC ADMINISTRATOR OR ANY OF THEIR AFFILIATES. NEITHER THIS CERTIFICATE NOR THE
UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE
UNITED STATES.
THIS CERTIFIES THAT ----------------
is the registered owner of the interest evidenced by this Certificate in the
Class A-1 Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of May 1, 1996 (the "Pooling and Servicing
Agreement"), among NationsLink Funding Corporation (hereinafter called the
"Depositor", which term includes any successor entity under the Pooling and
Servicing Agreement), the Trustee, the Special Servicer, the Master Servicer and
the REMIC Administrator. A summary of certain of the pertinent provisions of the
Pooling and Servicing Agreement is set forth hereafter. To the extent not
defined herein, the capitalized terms used herein shall have the meanings
assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate [set forth
on Schedule A attached hereto]4 [specified on the face hereof]5, by the
aggregate initial Certificate Balance of the Class A-1 Certificates. The
Certificates are designated as the NationsLink Funding Corporation, Commercial
Mortgage Pass-Through Certificates, Series 1996-1 and are issued in fourteen
Classes as specifically set forth in the Pooling and Servicing Agreement. The
Certificates will evidence in the aggregate 100% of the beneficial ownership of
the Trust Fund.
This Certificate does not purport to summarize the Pooling and Servicing
Agreement and reference is made to that agreement for information with respect
to the interests, rights, benefits, obligations, proceeds, and duties evidenced
hereby and the rights, duties and obligations of the Trustee. This Certificate
is issued under and is subject to the terms, provisions and conditions of the
Pooling and Servicing Agreement, to which Pooling and Servicing Agreement, as
amended from time to time, the Certificateholder by virtue of the acceptance
hereof assents and by which the Certificateholder is bound. In the case of any
conflict between terms specified in this Certificate and terms specified in the
Pooling and Servicing Agreement, the terms of the Pooling and Servicing
Agreement shall govern.
- ----------
4 If this Certificate represents a Book-Entry Certificate, its Denomination
shall be set forth on Schedule A attached hereto.
5 If this Certificate represents a Definitive Certificate, the Denomination
shall be specified on the face hereof.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the Trustee
shall distribute to the Person in whose name this Certificate is registered as
of the related Record Date, an amount equal to such Person's pro rata share
(based on the Percentage Interest represented by this Certificate) of that
portion of the aggregate amount of principal and interest then distributable, if
any, allocable to the Class of Certificates of the same Class as this
Certificate for such Distribution Date, all as more described in the Pooling and
Servicing Agreement. Holders of this Certificate may be entitled to Prepayment
Premiums and Yield Maintenance Charges as provided in the Pooling and Servicing
Agreement. All sums distributable on this Certificate are payable in the coin or
currency of the United States of America as at the time of payment is legal
tender for the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class A-1 Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount due to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit on the Mortgage Loans shall be allocated on the
applicable Distribution Date to Certificateholders in the manner set forth in
the Pooling and Servicing Agreement. All Collateral Support Deficit on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other things,
certain collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held in the name of the Trustee on behalf of the
holders of Certificates specified in the Pooling and Servicing Agreement and the
Master Servicer (with respect to the Certificate Account) or the Trustee (with
respect to the Distribution Accounts) will be authorized to make withdrawals
therefrom. Amounts on deposit in such accounts may be invested in Eligible
Investments. Interest or other income earned on funds in the Certificate Account
and Distribution Accounts will be paid to the Master Servicer as set forth in
the Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the master
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a Class of
Certificates shall be made on each Distribution Date (other than the final
distribution on any Certificate) to Certificateholders of record on the related
Record Date by check mailed to the address set forth therefor in the Certificate
Register or, provided that such Certificateholder (1) has provided the Trustee
with wire instructions in writing as least five Business Days prior to the
related Record Date and (2) is the Holder of Certificates with an original
Certificate Balance or Notional Amount, as applicable, of at least $5,000,000,
by wire transfer of immediately available funds to the account of such
Certificateholder at a bank or other entity having appropriate facilities
therefor. The final distribution on this Certificate shall be made in like
manner, but only upon presentment and surrender of this Certificate at the
Corporate Trust Office or such other location specified in the notice to
Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of the
failure of Certificateholders to tender their Certificates shall be set aside
and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(h) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Trustee may, directly or through an agent, take appropriate
steps to contact the remaining non-tendering Certificateholders concerning
surrender of their Certificates. The costs and expenses of holding such funds in
trust and of contacting such Certificateholders shall be paid out of such funds.
No interest shall accrue or be payable to any Certificateholder on any amount
held in trust as a result of such Certificateholder's failure to surrender its
Certificate(s) for final payment thereof in accordance with Section 4.01(h) of
the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registerable
in the Certificate Register only upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Trustee or at the
office of its transfer agent, duly endorsed by, or accompanied by an assignment
in the form below or other written instrument of transfer in form satisfactory
to the Certificate Registrar duly executed by the Holder hereof or such Holder's
attorney-in-fact duly authorized in writing, and thereupon one or more new
Certificates of the same Class in authorized Denominations will be issued to the
designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the Class A
Certificates will be issued in book-entry form through the facilities of DTC in
Denominations of not less than $10,000 initial Certificate Balance and in
integral multiples of $1,000 in excess thereof, with one Certificate of such
Class evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class. Subject to the terms of the Pooling and
Servicing Agreement, the Class IO Certificates will be issued in book-entry form
through the facilities of DTC in Denominations of not less than $1,000,000
initial Notional Amount and in integral multiples of $1,000 in excess thereof,
with one Certificate of such Class evidencing an additional amount equal to the
remainder of the initial Notional Amount of such Class. Subject to the terms of
the Pooling and Servicing Agreement, the Class B, Class C, Class D, Class E,
Class F, Class G, Class H and Class UR Certificates will be issued in book-entry
form through the facilities of DTC in Denominations of $250,000 initial
Certificate Balance, and in integral multiples of $1,000 in excess thereof, with
one Certificate of each such Class evidencing an additional amount equal to the
remainder of the initial Certificate Balance of such Class. The Class R and
Class LR Certificates will be issued in fully registered, certificated form, in
Denominations representing Percentage Interests of not less than 20%.
No fee or service charge shall be imposed by the Certificate Registrar for
its services in respect of any registration of transfer or exchange referred to
in Section 5.02 of the Pooling and Servicing Agreement other than for transfers
to Institutional Accredited Investors as provided in Section 5.02(h) thereof. In
connection with any transfer to an Institutional Accredited Investor, the
Transferor shall reimburse the Trust for any costs (including the cost of the
Certificate Registrar's counsel's review of the documents and any legal
opinions, submitted by the transferor or transferee to the Certificate Registrar
as provided in Section 5.02 of the Pooling and Servicing Agreement) incurred by
the Certificate Registrar in connection with such transfer. The Certificate
Registrar may require payment by each transferor of a sum sufficient to cover
any tax, expense or other governmental charge payable in connection with any
such transfer or exchange.
The Depositor, the Trustee, the REMIC Administrator, the Master Servicer,
the Special Servicer, and the Certificate Registrar and any of their agents may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Master
Servicer, the Special Servicer, the REMIC Administrator, the Certificate
Registrar nor any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time by the
Depositor, the Master Servicer, the Special Servicer, the REMIC Administrator
and the Trustee, without the consent of any of the Certificateholders, to cure
any ambiguity, to correct or supplement any provisions herein or therein that
may be inconsistent with any other provisions herein or therein or to correct
any error; to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of the
Upper-Tier REMIC or the Lower-Tier REMIC to avoid or minimize the imposition of
any tax, provided, however, an Opinion of Counsel is obtained to the effect that
such action shall not adversely affect in any material respect the interest of
any Certificateholder and such action is necessary or desirable to avoid such
tax and such action will not result in the withdrawal, downgrade or
qualification of the then-current rating by any Rating Agency, as evidenced by a
letter from such Rating Agency to such effect; to change the timing and/or
nature of deposits into the Certificate Account or Distribution Accounts or to
change the name in which the Certificate Account is maintained, provided,
however, that the P&I Advance Date shall not be later than the related
Distribution Date, an Opinion of Counsel is obtained to the effect that such
action shall not adversely affect in any material respect the interest of any
Certificateholder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating by any Rating Agency, as
evidenced by a letter from such Rating Agency to such effect; to modify,
eliminate or add to the provisions of Section 5.02(d) of the Pooling and
Servicing Agreement or any other provision thereof restricting transfer of the
Residual Certificates by virtue of their being the REMIC "residual interests,"
provided that such change shall not result in the withdrawal, downgrade or
qualification of the then-current rating assigned to any Class of Certificates,
as evidenced by a letter from each Rating Agency to such effect, and such change
shall not, as evidenced by an Opinion of Counsel, cause either the Trust Fund,
the Lower-Tier REMIC, the Upper-Tier REMIC or any of the Certificateholders
(other than the Transferor) to be subject to a federal tax caused by a Transfer
to a Person that is a Disqualified Organization or a Non-U.S. Person; and to
make any other provisions with respect to matters or questions arising under the
Pooling and Servicing Agreement which shall not be materially inconsistent with
the provisions of the Pooling and Servicing Agreement, provided, however, that
such action shall not, as evidenced by an Opinion of Counsel, adversely affect
in any material respect the interest of any Certificateholder not consenting
thereto.
The Pooling and Servicing Agreement may also be amended from time to time
by the Depositor, the Master Servicer, the Special Servicer, the REMIC
Administrator and the Trustee with the consent of the Holders of Certificates
representing not less than 66% of the aggregate Percentage Interests of each
Class of Certificates affected by the amendment for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Pooling and Servicing Agreement or of modifying in any manner the rights of
the Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate
without the consent of such Certificateholder; or
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment,
without the consent of the Holders of all Certificates of such Class
then outstanding.
No amendment shall be made to the Pooling and Servicing Agreement unless
the Trustee shall have received an Opinion of Counsel that such amendment will
not cause either the Upper-Tier REMIC or the Lower-Tier REMIC to fail to qualify
as a REMIC or result in the imposition of a tax on either the Upper-Tier REMIC,
the Lower-Tier REMIC or the Trust Fund.
Any of the Master Servicer or the Depositor will have the option, upon 60
days' prior notice given to the Trustee, each of the other parties to the
Pooling and Servicing Agreement and the Rating Agencies, which notice the
Trustee is required to forward to Certificateholders in the manner set forth in
the Pooling and Servicing Agreement, to purchase all, but not less than all, of
the Mortgage Loans and all property acquired in respect of any Mortgage Loan
remaining in the Trust Fund, and thereby effect termination of the Trust Fund
and early retirement of the then outstanding Certificates, on any Distribution
Date on which the aggregate Stated Principal Balances of the Mortgage Loans and
any REO Loans remaining in the Trust Fund is reduced to less than 5% of the
aggregate Cut-Off Date Principal Balance of all the Mortgage Loans.
The obligations created by the Pooling and Servicing Agreement and the
Trust Fund created thereby (other than the obligation of the Trustee to make
payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Joseph P. Kennedy, the late Ambassador of the United States to
the Court of St. James, living on the date hereof.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Trustee has executed this Certificate on behalf of the
Trust Fund as Trustee under the Pooling and Servicing Agreement and makes no
representation or warranty as to any of the statements contained herein or the
validity or sufficiency of the Certificates or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE CONSTRUED
IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK WITHOUT
REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed under this official seal.
THE CHASE MANHATTAN BANK, N.A., not
in its individual capacity but
solely as Trustee under the Pooling
and Servicing Agreement.
By: ___________________________
AUTHORIZED OFFICER
Dated: May 16, 1996
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-1 CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
THE CHASE MANHATTAN BANK, N.A.,
CERTIFICATE REGISTRAR
By: __________________________
AUTHORIZED SIGNATORY
<PAGE>
Schedule A
Certificate Balance of
Definitive Certificates
exchanged or transferred
for, or issued in exchange
for or upon transfer of, Remaining Principal
an interest in this Amount of Book- Notation
Date Book-Entry Certificate Entry Certificate Made By
- ---- ---------------------- ------------------- -------
- --------- ---------------------- ------------------- --------
- --------- ---------------------- ------------------- --------
- --------- ---------------------- ------------------- --------
- --------- ---------------------- ------------------- --------
- --------- ---------------------- ------------------- --------
- --------- ---------------------- ------------------- --------
- --------- ---------------------- ------------------- --------
- --------- ---------------------- ------------------- --------
- --------- ---------------------- ------------------- --------
- --------- ---------------------- ------------------- --------
- --------- ---------------------- ------------------- --------
- --------- ---------------------- ------------------- --------
- --------- ---------------------- ------------------- --------
- --------- ---------------------- ------------------- --------
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights
of Under Uniform Gifts to
Minors survivorship and not
as tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
- --------------------------------------------------------------------------------
(Please insert Social Security or other identifying number of Assignee)
- --------------------------------------------------------------------------------
(Please print or typewrite name and address of assignee)
- --------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
--------------------------------------------------------
Dated:----------- NOTICE: The signature to this assignment must
correspond with the name as written upon the face of
this Certificate in every particular without alteration
or enlargement or any change whatever.
- --------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
<PAGE>
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to _________________________________ for the account of
__________________________________ account number _______________ or, if mailed
by check, to _______________________________________. Statements should be
mailed to _______________________________________________________________. This
information is provided by assignee named above, or
______________________________ , as its agent.
<PAGE>
EXHIBIT A-2
NATIONSLINK FUNDING CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 1996-1, CLASS A-2
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS ON THE
CERTIFICATES AND THE PORTION OF COLLATERAL SUPPORT DEFICIT ALLOCABLE TO THIS
CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE
LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN
ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE TRUSTEE. THIS CERTIFICATE
CONSTITUTES A REMIC REGULAR INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED.
[Unless this certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the Certificate
Registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.]1
<TABLE>
<CAPTION>
<S> <C>
PASS-THROUGH RATE: 7.515% APPROXIMATE AGGREGATE SCHEDULED PRINCIPAL BALANCE OF THE
MORTGAGE LOANS AFTER DEDUCTING PAYMENTS DUE AND
DENOMINATION: [$_____________]2 PREPAYMENTS RECEIVED ON OR BEFORE CUT-OFF DATE:
Set forth on Schedule A]3 $322,639,635
DATE OF POOLING AND SERVICING AGREEMENT: AS OF MASTER SERVICER: AMRESCO MANAGEMENT, INC.
MAY 1, 1996
SPECIAL SERVICER: AMRESCO MANAGEMENT, INC.
CUT-OFF DATE: MAY 1, 1996, EXCEPT AS DESCRIBED
IN THE POOLING AND SERVICING AGREEMENT TRUSTEE: THE CHASE MANHATTAN BANK, N.A.
CLOSING DATE: MAY 16, 1996 REMIC ADMINISTRATOR: NATIONSBANC MORTGAGE CAPITAL
CORPORATION
FIRST DISTRIBUTION DATE:
JUNE 20, 1996 CUSIP NO. 63859CAB9
APPROXIMATE AGGREGATE CERTIFICATE NO.: A-2-1
CERTIFICATE BALANCE
OF THE CLASS A-2 CERTIFICATES
AS OF THE CLOSING DATE: $96,791,890
<FN>
1 If this Certificate represents a Book-Entry Certificate registered in the name
of Cede & Co., it shall have this legend.
2 If this Certificate represents a Definitive Certificate, the Denomination
shall be specified on the face hereof.
3 If this Certificate represents a Book-Entry Certificate, its Denomination
shall be set forth on Schedule A attached hereto.
</FN>
</TABLE>
<PAGE>
CLASS A-2 CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of fixed rate commercial and multifamily mortgage loans (the "Mortgage
Loans"), all payments on or collections in respect of the Mortgage Loans due
after the Cut-Off Date, all REO Properties and revenues received in respect
thereof, the mortgagee's rights under the Insurance Policies, any Assignment of
Leases, and any guaranties, escrow accounts or other collateral as security for
the Mortgage Loans, and such amounts as shall from time to time be held in the
Certificate Account, the Distribution Accounts, and the REO Accounts, formed and
sold by
NATIONSLINK FUNDING CORPORATION
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN NATIONSLINK
FUNDING CORPORATION, THE MASTER SERVICER, THE SPECIAL SERVICER, THE TRUSTEE, THE
REMIC ADMINISTRATOR OR ANY OF THEIR AFFILIATES. NEITHER THIS CERTIFICATE NOR THE
UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE
UNITED STATES.
THIS CERTIFIES THAT ------------------
is the registered owner of the interest evidenced by this Certificate in the
Class A-2 Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of May 1, 1996 (the "Pooling and Servicing
Agreement"), among NationsLink Funding Corporation (hereinafter called the
"Depositor", which term includes any successor entity under the Pooling and
Servicing Agreement), the Trustee, the Special Servicer, the Master Servicer and
the REMIC Administrator. A summary of certain of the pertinent provisions of the
Pooling and Servicing Agreement is set forth hereafter. To the extent not
defined herein, the capitalized terms used herein shall have the meanings
assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate [set forth
on Schedule A attached hereto]4 [specified on the face hereof]5, by the
aggregate initial Certificate Balance of the Class A-2 Certificates. The
Certificates are designated as the NationsLink Funding Corporation, Commercial
Mortgage Pass-Through Certificates, Series 1996-1 and are issued in fourteen
Classes as specifically set forth in the Pooling and Servicing Agreement. The
Certificates will evidence in the aggregate 100% of the beneficial ownership of
the Trust Fund.
This Certificate does not purport to summarize the Pooling and Servicing
Agreement and reference is made to that agreement for information with respect
to the interests, rights, benefits, obligations, proceeds, and duties evidenced
hereby and the rights, duties and obligations of the Trustee. This Certificate
is issued under and is subject to the terms, provisions and conditions of the
Pooling and Servicing Agreement, to which Pooling and Servicing Agreement, as
amended from time to time, the Certificateholder by virtue of the acceptance
hereof assents and by which the Certificateholder is bound. In the case of any
conflict between terms specified in this Certificate and terms specified in the
Pooling and Servicing Agreement, the terms of the Pooling and Servicing
Agreement shall govern.
- ----------
4 If this Certificate represents a Book-Entry Certificate, its Denomination
shall be set forth on Schedule A attached hereto.
5 If this Certificate represents a Definitive Certificate, the Denomination
shall be specified on the face hereof.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the Trustee
shall distribute to the Person in whose name this Certificate is registered as
of the related Record Date, an amount equal to such Person's pro rata share
(based on the Percentage Interest represented by this Certificate) of that
portion of the aggregate amount of principal and interest then distributable, if
any, allocable to the Class of Certificates of the same Class as this
Certificate for such Distribution Date, all as more described in the Pooling and
Servicing Agreement. Holders of this Certificate may be entitled to Prepayment
Premiums and Yield Maintenance Charges as provided in the Pooling and Servicing
Agreement. All sums distributable on this Certificate are payable in the coin or
currency of the United States of America as at the time of payment is legal
tender for the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class A-2 Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount due to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit on the Mortgage Loans shall be allocated on the
applicable Distribution Date to Certificateholders in the manner set forth in
the Pooling and Servicing Agreement. All Collateral Support Deficit on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other things,
certain collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held in the name of the Trustee on behalf of the
holders of Certificates specified in the Pooling and Servicing Agreement and the
Master Servicer (with respect to the Certificate Account) or the Trustee (with
respect to the Distribution Accounts) will be authorized to make withdrawals
therefrom. Amounts on deposit in such accounts may be invested in Eligible
Investments. Interest or other income earned on funds in the Certificate Account
and Distribution Accounts will be paid to the Master Servicer as set forth in
the Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the master
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a Class of
Certificates shall be made on each Distribution Date (other than the final
distribution on any Certificate) to Certificateholders of record on the related
Record Date by check mailed to the address set forth therefor in the Certificate
Register or, provided that such Certificateholder (1) has provided the Trustee
with wire instructions in writing as least five Business Days prior to the
related Record Date and (2) is the Holder of Certificates with an original
Certificate Balance or Notional Amount, as applicable, of at least $5,000,000,
by wire transfer of immediately available funds to the account of such
Certificateholder at a bank or other entity having appropriate facilities
therefor. The final distribution on this Certificate shall be made in like
manner, but only upon presentment and surrender of this Certificate at the
Corporate Trust Office or such other location specified in the notice to
Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of the
failure of Certificateholders to tender their Certificates shall be set aside
and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(h) of
the Pooling and Se rvicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Trustee may, directly or through an agent, take appropriate
steps to contact the remaining non-tendering Certificateholders concerning
surrender of their Certificates. The costs and expenses of holding such funds in
trust and of contacting such Certificateholders shall be paid out of such funds.
No interest shall accrue or be payable to any Certificateholder on any amount
held in trust as a result of such Certificateholder's failure to surrender its
Certificate(s) for final payment thereof in accordance with Section 4.01(h) of
the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registerable
in the Certificate Register only upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Trustee or at the
office of its transfer agent, duly endorsed by, or accompanied by an assignment
in the form below or other written instrument of transfer in form satisfactory
to the Certificate Registrar duly executed by the Holder hereof or such Holder's
attorney-in-fact duly authorized in writing, and thereupon one or more new
Certificates of the same Class in authorized Denominations will be issued to the
designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the Class A
Certificates will be issued in book-entry form through the facilities of DTC in
Denominations of not less than $10,000 initial Certificate Balance and in
integral multiples of $1,000 in excess thereof, with one Certificate of such
Class evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class. Subject to the terms of the Pooling and
Servicing Agreement, the Class IO Certificates will be issued in book-entry form
through the facilities of DTC in Denominations of not less than $1,000,000
initial Notional Amount and in integral multiples of $1,000 in excess thereof,
with one Certificate of such Class evidencing an additional amount equal to the
remainder of the initial Notional Amount of such Class. Subject to the terms of
the Pooling and Servicing Agreement, the Class B, Class C, Class D, Class E,
Class F, Class G, Class H and Class UR Certificates will be issued in book-entry
form through the facilities of DTC in Denominations of $250,000 initial
Certificate Balance, and in integral multiples of $1,000 in excess thereof, with
one Certificate of each such Class evidencing an additional amount equal to the
remainder of the initial Certificate Balance of such Class. The Class R and
Class LR Certificates will be issued in fully registered, certificated form, in
Denominations representing Percentage Interests of not less than 20%.
No fee or service charge shall be imposed by the Certificate Registrar for
its services in respect of any registration of transfer or exchange referred to
in Section 5.02 of the Pooling and Servicing Agreement other than for transfers
to Institutional Accredited Investors as provided in Section 5.02(h) thereof. In
connection with any transfer to an Institutional Accredited Investor, the
Transferor shall reimburse the Trust for any costs (including the cost of the
Certificate Registrar's counsel's review of the documents and any legal
opinions, submitted by the transferor or transferee to the Certificate Registrar
as provided in Section 5.02 of the Pooling and Servicing Agreement) incurred by
the Certificate Registrar in connection with such transfer. The Certificate
Registrar may require payment by each transferor of a sum sufficient to cover
any tax, expense or other governmental charge payable in connection with any
such transfer or exchange.
The Depositor, the Trustee, the REMIC Administrator, the Master Servicer,
the Special Servicer, and the Certificate Registrar and any of their agents may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Master
Servicer, the Special Servicer, the REMIC Administrator, the Certificate
Registrar nor any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time by the
Depositor, the Master Servicer, the Special Servicer, the REMIC Administrator
and the Trustee, without the consent of any of the Certificateholders, to cure
any ambiguity, to correct or supplement any provisions herein or therein that
may be inconsistent with any other provisions herein or therein or to correct
any error; to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of the
Upper-Tier REMIC or the Lower-Tier REMIC to avoid or minimize the imposition of
any tax, provided, however, an Opinion of Counsel is obtained to the effect that
such action shall not adversely affect in any material respect the interest of
any Certificateholder and such action is necessary or desirable to avoid such
tax and such action will not result in the withdrawal, downgrade or
qualification of the then-current rating by any Rating Agency, as evidenced by a
letter from such Rating Agency to such effect; to change the timing and/or
nature of deposits into the Certificate Account or Distribution Accounts or to
change the name in which the Certificate Account is maintained, provided,
however, that the P&I Advance Date shall not be later than the related
Distribution Date, an Opinion of Counsel is obtained to the effect that such
action shall not adversely affect in any material respect the interest of any
Certificateholder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating by any Rating Agency, as
evidenced by a letter from such Rating Agency to such effect; to modify,
eliminate or add to the provisions of Section 5.02(d) of the Pooling and
Servicing Agreement or any other provision thereof restricting transfer of the
Residual Certificates by virtue of their being the REMIC "residual interests,"
provided that such change shall not result in the withdrawal, downgrade or
qualification of the then-current rating assigned to any Class of Certificates,
as evidenced by a letter from each Rating Agency to such effect, and such change
shall not, as evidenced by an Opinion of Counsel, cause either the Trust Fund,
the Lower-Tier REMIC, the Upper-Tier REMIC or any of the Certificateholders
(other than the Transferor) to be subject to a federal tax caused by a Transfer
to a Person that is a Disqualified Organization or a Non-U.S. Person; and to
make any other provisions with respect to matters or questions arising under the
Pooling and Servicing Agreement which shall not be materially inconsistent with
the provisions of the Pooling and Servicing Agreement, provided, however, that
such action shall not, as evidenced by an Opinion of Counsel, adversely affect
in any material respect the interest of any Certificateholder not consenting
thereto.
The Pooling and Servicing Agreement may also be amended from time to time
by the Depositor, the Master Servicer, the Special Servicer, the REMIC
Administrator and the Trustee with the consent of the Holders of Certificates
representing not less than 66% of the aggregate Percentage Interests of each
Class of Certificates affected by the amendment for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Pooling and Servicing Agreement or of modifying in any manner the rights of
the Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate
without the consent of such Certificateholder; or
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment,
without the consent of the Holders of all Certificates of such Class
then outstanding.
No amendment shall be made to the Pooling and Servicing Agreement unless
the Trustee shall have received an Opinion of Counsel that such amendment will
not cause either the Upper-Tier REMIC or the Lower-Tier REMIC to fail to qualify
as a REMIC or result in the imposition of a tax on either the Upper-Tier REMIC,
the Lower-Tier REMIC or the Trust Fund.
Any of the Master Servicer or the Depositor will have the option, upon 60
days' prior notice given to the Trustee, each of the other parties to the
Pooling and Servicing Agreement and the Rating Agencies, which notice the
Trustee is required to forward to Certificateholders in the manner set forth in
the Pooling and Servicing Agreement, to purchase all, but not less than all, of
the Mortgage Loans and all property acquired in respect of any Mortgage Loan
remaining in the Trust Fund, and thereby effect termination of the Trust Fund
and early retirement of the then outstanding Certificates, on any Distribution
Date on which the aggregate Stated Principal Balances of the Mortgage Loans and
any REO Loans remaining in the Trust Fund is reduced to less than 5% of the
aggregate Cut-Off Date Principal Balance of all the Mortgage Loans.
The obligations created by the Pooling and Servicing Agreement and the
Trust Fund created thereby (other than the obligation of the Trustee to make
payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Joseph P. Kennedy, the late Ambassador of the United States to
the Court of St. James, living on the date hereof.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Trustee has executed this Certificate on behalf of the
Trust Fund as Trustee under the Pooling and Servicing Agreement and makes no
representation or warranty as to any of the statements contained herein or the
validity or sufficiency of the Certificates or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE CONSTRUED
IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK WITHOUT
REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed u nder this official seal.
THE CHASE MANHATTAN BANK, N.A., not
in its individual capacity but
solely as Trustee under the Pooling
and Servicing Agreement.
By: ___________________________
AUTHORIZED OFFICER
Dated: May 16, 1996
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-2 CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
THE CHASE MANHATTAN BANK, N.A.,
CERTIFICATE REGISTRAR
By: ___________________________
AUTHORIZED SIGNATORY
<PAGE>
Schedule A
Certificate Balance of
Definitive Certificates
exchanged or transferred
for, or issued in exchange
for or upon transfer of, Remaining Principal
an interest in this Amount of Book- Notation
Date Book-Entry Certificate Entry Certificate Made By
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<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights of Under Uniform Gifts to Minors
survivorship and not as tenants
in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
- --------------------------------------------------------------------------------
(Please insert Social Security or other identifying number of Assignee)
- --------------------------------------------------------------------------------
(Please print or typewrite name and address of assignee)
- --------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
--------------------------------------------------------
Dated: NOTICE: The signature to this assignment must
correspond with the name as written upon the face of
this Certificate in every particular without alteration
or enlargement or any change whatever.
- --------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
<PAGE>
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to _________________________________ for the account of
__________________________________ account number _______________ or, if mailed
by check, to _______________________________________. Statements should be
mailed to _______________________________________________________________. This
information is provided by assignee named above, or
______________________________ , as its agent.
<PAGE>
EXHIBIT A-3
NATIONSLINK FUNDING CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 1996-1, CLASS A-3
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS ON THE
CERTIFICATES AND THE PORTION OF COLLATERAL SUPPORT DEFICIT ALLOCABLE TO THIS
CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE
LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN
ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE TRUSTEE. THIS CERTIFICATE
CONSTITUTES A REMIC REGULAR INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED.
[Unless this certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the Certificate
Registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.]1
<TABLE>
<CAPTION>
<S> <C>
PASS-THROUGH RATE: 7.830% APPROXIMATE AGGREGATE SCHEDULED PRINCIPAL BALANCE OF THE
MORTGAGE LOANS AFTER DEDUCTING PAYMENTS DUE AND
DENOMINATION: [$____________]2 PREPAYMENTS RECEIVED ON OR BEFORE CUT-OFF DATE:
[Set forth on Schedule A]3 $322,639,635
DATE OF POOLING AND SERVICING AGREEMENT: AS OF MASTER SERVICER: AMRESCO MANAGEMENT, INC.
MAY 1, 1996
SPECIAL SERVICER: AMRESCO MANAGEMENT, INC.
CUT-OFF DATE: MAY 1, 1996, EXCEPT AS DESCRIBED
IN THE POOLING AND SERVICING AGREEMENT TRUSTEE: THE CHASE MANHATTAN BANK, N.A.
CLOSING DATE: MAY 16, 1996 REMIC ADMINISTRATOR: NATIONSBANC MORTGAGE CAPITAL
CORPORATION
FIRST DISTRIBUTION DATE:
JUNE 20, 1996 CUSIP NO. 63859CAC7
APPROXIMATE AGGREGATE CERTIFICATE NO.: A-3-1
CERTIFICATE BALANCE
OF THE CLASS A-3 CERTIFICATES
AS OF THE CLOSING DATE: $51,622,341
<FN>
1 If this Certificate represents a Book-Entry Certificate registered in the name
of Cede & Co., it shall have this legend.
2 If this Certificate represents a Definitive Certificate, the Denomination
shall be specified on the face hereof.
3 If this Certificate represents a Book-Entry Certificate, its Denomination
shall be set forth on Schedule A attached hereto.
</FN>
</TABLE>
<PAGE>
CLASS A-3 CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of fixed rate commercial and multifamily mortgage loans (the "Mortgage
Loans"), all payments on or collections in respect of the Mortgage Loans due
after the Cut-Off Date, all REO Properties and revenues received in respect
thereof, the mortgagee's rights under the Insurance Policies, any Assignment of
Leases, and any guaranties, escrow accounts or other collateral as security for
the Mortgage Loans, and such amounts as shall from time to time be held in the
Certificate Account, the Distribution Accounts, and the REO Accounts, formed and
sold by
NATIONSLINK FUNDING CORPORATION
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN NATIONSLINK
FUNDING CORPORATION, THE MASTER SERVICER, THE SPECIAL SERVICER, THE TRUSTEE, THE
REMIC ADMINISTRATOR OR ANY OF THEIR AFFILIATES. NEITHER THIS CERTIFICATE NOR THE
UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE
UNITED STATES.
THIS CERTIFIES THAT -------------
is the registered owner of the interest evidenced by this Certificate in the
Class A-3 Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of May 1, 1996 (the "Pooling and Servicing
Agreement"), among NationsLink Funding Corporation (hereinafter called the
"Depositor", which term includes any successor entity under the Pooling and
Servicing Agreement), the Trustee, the Special Servicer, the Master Servicer and
the REMIC Administrator. A summary of certain of the pertinent provisions of the
Pooling and Servicing Agreement is set forth hereafter. To the extent not
defined herein, the capitalized terms used herein shall have the meanings
assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate [set forth
on Schedule A attached hereto]4 [specified on the face hereof]5, by the
aggregate initial Certificate Balance of the Class A-3 Certificates. The
Certificates are designated as the NationsLink Funding Corporation, Commercial
Mortgage Pass-Through Certificates, Series 1996-1 and are issued in fourteen
Classes as specifically set forth in the Pooling and Servicing Agreement. The
Certificates will evidence in the aggregate 100% of the beneficial ownership of
the Trust Fund.
This Certificate does not purport to summarize the Pooling and Servicing
Agreement and reference is made to that agreement for information with respect
to the interests, rights, benefits, obligations, proceeds, and duties evidenced
hereby and the rights, duties and obligations of the Trustee. This Certificate
is issued under and is subject to the terms, provisions and conditions of the
Pooling and Servicing Agreement, to which Pooling and Servicing Agreement, as
amended from time to time, the Certificateholder by virtue of the acceptance
hereof assents and by which the Certificateholder is bound. In the case of any
conflict between terms specified in this Certificate and terms specified in the
Pooling and Servicing Agreement, the terms of the Pooling and Servicing
Agreement shall govern.
- ----------
4 If this Certificate represents a Book-Entry Certificate, its Denomination
shall be set forth on Schedule A attached hereto.
5 If this Certificate represents a Definitive Certificate, the Denomination
shall be specified on the face hereof.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the Trustee
shall distribute to the Person in whose name this Certificate is registered as
of the related Record Date, an amount equal to such Person's pro rata share
(based on the Percentage Interest represented by this Certificate) of that
portion of the aggregate amount of principal and interest then distributable, if
any, allocable to the Class of Certificates of the same Class as this
Certificate for such Distribution Date, all as more described in the Pooling and
Servicing Agreement. Holders of this Certificate may be entitled to Prepayment
Premiums and Yield Maintenance Charges as provided in the Pooling and Servicing
Agreement. All sums distributable on this Certificate are payable in the coin or
currency of the United States of America as at the time of payment is legal
tender for the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class A-3 Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount due to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit on the Mortgage Loans shall be allocated on the
applicable Distribution Date to Certificateholders in the manner set forth in
the Pooling and Servicing Agreement. All Collateral Support Deficit on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other things,
certain collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held in the name of the Trustee on behalf of the
holders of Certificates specified in the Pooling and Servicing Agreement and the
Master Servicer (with respect to the Certificate Account) or the Trustee (with
respect to the Distribution Accounts) will be authorized to make withdrawals
therefrom. Amounts on deposit in such accounts may be invested in Eligible
Investments. Interest or other income earned on funds in the Certificate Account
and Distribution Accounts will be paid to the Master Servicer as set forth in
the Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the master
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a Class of
Certificates shall be made on each Distribution Date (other than the final
distribution on any Certificate) to Certificateholders of record on the related
Record Date by check mailed to the address set forth therefor in the Certificate
Register or, provided that such Certificateholder (1) has provided the Trustee
with wire instructions in writing as least five Business Days prior to the
related Record Date and (2) is the Holder of Certificates with an original
Certificate Balance or Notional Amount, as applicable, of at least $5,000,000,
by wire transfer of immediately available funds to the account of such
Certificateholder at a bank or other entity having appropriate facilities
therefor. The final distribution on this Certificate shall be made in like
manner, but only upon presentment and surrender of this Certificate at the
Corporate Trust Office or such other location specified in the notice to
Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of the
failure of Certificateholders to tender their Certificates shall be set aside
and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(h) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Trustee may, directly or through an agent, take appropriate
steps to contact the remaining non-tendering Certificateholders concerning
surrender of their Certificates. The costs and expenses of holding such funds in
trust and of contacting such Certificateholders shall be paid out of such funds.
No interest shall accrue or be payable to any Certificateholder on any amount
held in trust as a result of such Certificateholder's failure to surrender its
Certificate(s) for final payment thereof in accordance with Section 4.01(h) of
the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registerable
in the Certificate Register only upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Trustee or at the
office of its transfer agent, duly endorsed by, or accompanied by an assignment
in the form below or other written instrument of transfer in form satisfactory
to the Certificate Registrar duly executed by the Holder hereof or such Holder's
attorney-in-fact duly authorized in writing, and thereupon one or more new
Certificates of the same Class in authorized Denominations will be issued to the
designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the Class A
Certificates will be issued in book-entry form through the facilities of DTC in
Denominations of not less than $10,000 initial Certificate Balance and in
integral multiples of $1,000 in excess thereof, with one Certificate of such
Class evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class. Subject to the terms of the Pooling and
Servicing Agreement, the Class IO Certificates will be issued in book-entry form
through the facilities of DTC in Denominations of not less than $1,000,000
initial Notional Amount and in integral multiples of $1,000 in excess thereof,
with one Certificate of such Class evidencing an additional amount equal to the
remainder of the initial Notional Amount of such Class. Subject to the terms of
the Pooling and Servicing Agreement, the Class B, Class C, Class D, Class E,
Class F, Class G, Class H and Class UR Certificates will be issued in book-entry
form through the facilities of DTC in Denominations of $250,000 initial
Certificate Balance, and in integral multiples of $1,000 in excess thereof, with
one Certificate of each such Class evidencing an additional amount equal to the
remainder of the initial Certificate Balance of such Class. The Class R and
Class LR Certificates will be issued in fully registered, certificated form, in
Denominations representing Percentage Interests of not less than 20%.
No fee or service charge shall be imposed by the Certificate Registrar for
its services in respect of any registration of transfer or exchange referred to
in Section 5.02 of the Pooling and Servicing Agreement other than for transfers
to Institutional Accredited Investors as provided in Section 5.02(h) thereof. In
connection with any transfer to an Institutional Accredited Investor, the
Transferor shall reimburse the Trust for any costs (including the cost of the
Certificate Registrar's counsel's review of the documents and any legal
opinions, submitted by the transferor or transferee to the Certificate Registrar
as provided in Section 5.02 of the Pooling and Servicing Agreement) incurred by
the Certificate Registrar in connection with such transfer. The Certificate
Registrar may require payment by each transferor of a sum sufficient to cover
any tax, expense or other governmental charge payable in connection with any
such transfer or exchange.
The Depositor, the Trustee, the REMIC Administrator, the Master Servicer,
the Special Servicer, and the Certificate Registrar and any of their agents may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Master
Servicer, the Special Servicer, the REMIC Administrator, the Certificate
Registrar nor any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time by the
Depositor, the Master Servicer, the Special Servicer, the REMIC Administrator
and the Trustee, without the consent of any of the Certificateholders, to cure
any ambiguity, to correct or supplement any provisions herein or therein that
may be inconsistent with any other provisions herein or therein or to correct
any error; to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of the
Upper-Tier REMIC or the Lower-Tier REMIC to avoid or minimize the imposition of
any tax, provided, however, an Opinion of Counsel is obtained to the effect that
such action shall not adversely affect in any material respect the interest of
any Certificateholder and such action is necessary or desirable to avoid such
tax and such action will not result in the withdrawal, downgrade or
qualification of the then-current rating by any Rating Agency, as evidenced by a
letter from such Rating Agency to such effect; to change the timing and/or
nature of deposits into the Certificate Account or Distribution Accounts or to
change the name in which the Certificate Account is maintained, provided,
however, that the P&I Advance Date shall not be later than the related
Distribution Date, an Opinion of Counsel is obtained to the effect that such
action shall not adversely affect in any material respect the interest of any
Certificateholder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating by any Rating Agency, as
evidenced by a letter from such Rating Agency to such effect; to modify,
eliminate or add to the provisions of Section 5.02(d) of the Pooling and
Servicing Agreement or any other provision thereof restricting transfer of the
Residual Certificates by virtue of their being the REMIC "residual interests,"
provided that such change shall not result in the withdrawal, downgrade or
qualification of the then-current rating assigned to any Class of Certificates,
as evidenced by a letter from each Rating Agency to such effect, and such change
shall not, as evidenced by an Opinion of Counsel, cause either the Trust Fund,
the Lower-Tier REMIC, the Upper-Tier REMIC or any of the Certificateholders
(other than the Transferor) to be subject to a federal tax caused by a Transfer
to a Person that is a Disqualified Organization or a Non-U.S. Person; and to
make any other provisions with respect to matters or questions arising under the
Pooling and Servicing Agreement which shall not be materially inconsistent with
the provisions of the Pooling and Servicing Agreement, provided, however, that
such action shall not, as evidenced by an Opinion of Counsel, adversely affect
in any material respect the interest of any Certificateholder not consenting
thereto.
The Pooling and Servicing Agreement may also be amended from time to time
by the Depositor, the Master Servicer, the Special Servicer, the REMIC
Administrator and the Trustee with the consent of the Holders of Certificates
representing not less than 66% of the aggregate Percentage Interests of each
Class of Certificates affected by the amendment for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Pooling and Servicing Agreement or of modifying in any manner the rights of
the Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate
without the consent of such Certificateholder; or
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment,
without the consent of the Holders of all Certificates of such Class
then outstanding.
No amendment shall be made to the Pooling and Servicing Agreement unless
the Trustee shall have received an Opinion of Counsel that such amendment will
not cause either the Upper-Tier REMIC or the Lower-Tier REMIC to fail to qualify
as a REMIC or result in the imposition of a tax on either the Upper-Tier REMIC,
the Lower-Tier REMIC or the Trust Fund.
Any of the Master Servicer or the Depositor will have the option, upon 60
days' prior notice given to the Trustee, each of the other parties to the
Pooling and Servicing Agreement and the Rating Agencies, which notice the
Trustee is required to forward to Certificateholders in the manner set forth in
the Pooling and Servicing Agreement, to purchase all, but not less than all, of
the Mortgage Loans and all property acquired in respect of any Mortgage Loan
remaining in the Trust Fund, and thereby effect termination of the Trust Fund
and early retirement of the then outstanding Certificates, on any Distribution
Date on which the aggregate Stated Principal Balances of the Mortgage Loans and
any REO Loans remaining in the Trust Fund is reduced to less than 5% of the
aggregate Cut-Off Date Principal Balance of all the Mortgage Loans.
The obligations created by the Pooling and Servicing Agreement and the
Trust Fund created thereby (other than the obligation of the Trustee to make
payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Joseph P. Kennedy, the late Ambassador of the United States to
the Court of St. James, living on the date hereof.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Trustee has executed this Certificate on behalf of the
Trust Fund as Trustee under the Pooling and Servicing Agreement and makes no
representation or warranty as to any of the statements contained herein or the
validity or sufficiency of the Certificates or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE CONSTRUED
IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK WITHOUT
REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed under this official seal.
THE CHASE MANHATTAN BANK, N.A., not
in its individual capacity but
solely as Trustee under the Pooling
and Servicing Agreement.
By: ___________________________
AUTHORIZED OFFICER
Dated: May 16, 1996
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-3 CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
THE CHASE MANHATTAN BANK, N.A.,
CERTIFICATE REGISTRAR
By: ___________________________
AUTHORIZED SIGNATORY
<PAGE>
Schedule A
Certificate Balance of
Definitive Certificates
exchanged or transferred
for, or issued in exchange
for or upon transfer of, Remaining Principal
an interest in this Amount of Book- Notation
Date Book-Entry Certificate Entry Certificate Made By
- ---- ---------------------- ------------------- -------
- --------- ---------------------- ------------------- --------
- --------- ---------------------- ------------------- --------
- --------- ---------------------- ------------------- --------
- --------- ---------------------- ------------------- --------
- --------- ---------------------- ------------------- --------
- --------- ---------------------- ------------------- --------
- --------- ---------------------- ------------------- --------
- --------- ---------------------- ------------------- --------
- --------- ---------------------- ------------------- --------
- --------- ---------------------- ------------------- --------
- --------- ---------------------- ------------------- --------
- --------- ---------------------- ------------------- --------
- --------- ---------------------- ------------------- --------
- --------- ---------------------- ------------------- --------
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights
of Under Uniform Gifts to
Minors survivorship and not
as tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
- --------------------------------------------------------------------------------
(Please insert Social Security or other identifying number of Assignee)
- --------------------------------------------------------------------------------
(Please print or typewrite name and address of assignee)
- --------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
--------------------------------------------------------
Dated:---------- NOTICE: The signature to this assignment must
correspond with the name as written upon the face of
this Certificate in every particular without alteration
or enlargement or any change whatever.
- --------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
<PAGE>
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to _________________________________ for the account of
__________________________________ account number _______________ or, if mailed
by check, to _______________________________________. Statements should be
mailed to _______________________________________________________________. This
information is provided by assignee named above, or
______________________________ , as its agent.
<PAGE>
EXHIBIT A-4
NATIONSLINK FUNDING CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 1996-1, CLASS B
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER CLASSES OF
CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING AND SERVICING
AGREEMENT.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS ON THE
CERTIFICATES AND THE PORTION OF COLLATERAL SUPPORT DEFICIT ALLOCABLE TO THIS
CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE
LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN
ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE TRUSTEE. THIS CERTIFICATE
CONSTITUTES A REMIC REGULAR INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED.
[Unless this certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the Certificate
Registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.]1
THIS CERTIFICATE MAY NOT BE PURCHASED BY OR TRANSFERRED TO A PERSON WHICH IS
(A)(1) AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY
PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
("ERISA"), OR (2) A PLAN SUBJECT TO SECTION 4975 OF THE CODE, OR A GOVERNMENTAL
PLAN AS DEFINED IN SECTION 3(32) OF ERISA, SUBJECT TO ANY FEDERAL, STATE OR
LOCAL LAW WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING PROVISIONS OF
ERISA OR THE CODE (COLLECTIVELY, A "PLAN"), OR (B) A COLLECTIVE INVESTMENT FUND
IN WHICH SUCH PLANS ARE INVESTED, OR (C) AN INSURANCE COMPANY USING ASSETS OF
SEPARATE ACCOUNTS OR GENERAL ACCOUNTS WHICH INCLUDE ASSETS OF PLANS (OR WHICH
ARE DEEMED PURSUANT TO ERISA OR ANY SIMILAR LAW TO INCLUDE ASSETS OF PLANS), OR
(D) A PERSON OR ENTITY ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF
SUCH PLAN TO ACQUIRE SUCH CERTIFICATE UNLESS IT IS PURCHASING THE CERTIFICATE
WITH THE ASSETS OF AN INSURANCE COMPANY GENERAL ACCOUNT AND (1) THE EXEMPTIVE
RELIEF AFFORDED UNDER SECTION III OF PROHIBITED TRANSACTION CLASS EXEMPTION
95-60 IS AVAILABLE FOR THE PURCHASE AND HOLDING OF THE CERTIFICATE BY SUCH
PURCHASER OR (2) THE PURCHASE WOULD NOT CONSTITUTE A "PROHIBITED TRANSACTION"
WITHIN THE MEANING OF SECTION 406 OR 407 OF ERISA, SECTION 4975 OF THE CODE OR A
MATERIALLY SIMILAR CHARACTERIZATION UNDER ANY SIMILAR LAW. EACH CERTIFICATE
OWNER SHALL BE DEEMED TO REPRESENT THAT IT IS NOT A PERSON SPECIFIED IN CLAUSES
(A), (B), (C), OR (D) ABOVE. TRANSFEREES OF THIS CERTIFICATE TAKING DELIVERY IN
CERTIFICATED FORM SHALL BE REQUIRED EITHER (i) TO DELIVER A LETTER IN THE FORM
OF EXHIBIT G TO THE POOLING AND SERVICING AGREEMENT TO THE EFFECT THAT IT IS NOT
A PERSON SPECIFIED IN CLAUSES (A), (B), (C) OR (D) ABOVE, OR (ii) IN THE EVENT
THE TRANSFEREE IS SUCH AN ENTITY SPECIFIED IN (A), (B), (C) OR (D) ABOVE, SUCH
ENTITY SHALL PROVIDE AN OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO
THE CERTIFICATE REGISTRAR AND THE DEPOSITOR THAT THE PURCHASE OR HOLDING OF THE
CERTIFICATES BY OR ON BEHALF OF A PLAN WILL NOT CONSTITUTE OR RESULT IN A
"PROHIBITED TRANSACTION" WITHIN THE MEANING OF SECTION 406 OR 407 OF ERISA OR
SECTION 4975 OF THE CODE, AND WILL NOT SUBJECT THE MASTER SERVICER, THE SPECIAL
SERVICER, THE DEPOSITOR, THE TRUSTEE, THE CERTIFICATE REGISTRAR, THE EXTENSION
ADVISER OR THE UNDERWRITER TO ANY OBLIGATION OR LIABILITY UNDER ERISA OR SECTION
4975 OF THE CODE.
<TABLE>
<CAPTION>
<S> <C>
PASS-THROUGH RATE: 7.690% APPROXIMATE AGGREGATE SCHEDULED PRINCIPAL BALANCE OF THE
MORTGAGE LOANS AFTER DEDUCTING PAYMENTS DUE AND
DENOMINATION: [$____________]2 PREPAYMENTS RECEIVED ON OR BEFORE CUT-OFF DATE:
[Set forth on Schedule A]3 $322,639,635
MASTER SERVICER: AMRESCO MANAGEMENT, INC.
DATE OF POOLING AND SERVICING AGREEMENT:
AS OF MAY 1, 1996 SPECIAL SERVICER: AMRESCO MANAGEMENT, INC.
CUT-OFF DATE: MAY 1, 1996, EXCEPT AS TRUSTEE: THE CHASE MANHATTAN BANK, N.A.
DESCRIBED IN THE POOLING AND SERVICING
AGREEMENT REMIC ADMINISTRATOR: NATIONSBANC MORTGAGE CAPITAL
CORPORATION
CLOSING DATE: MAY 16, 1996
CUSIP NO. 63859CAD5
FIRST DISTRIBUTION DATE:
JUNE 20, 1996 CERTIFICATE NO.: B-1
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE
OF THE CLASS B CERTIFICATES
AS OF THE CLOSING DATE: $16,131,981
<FN>
1 If this Certificate represents a Book-Entry Certificate registered in the name
of Cede & Co., it shall have this legend.
2 If this Certificate represents a Definitive Certificate, the Denomination
shall be specified on the face hereof.
3 If this Certificate represents a Book-Entry Certificate, its Denomination
shall be set forth on Schedule A attached hereto.
</FN>
</TABLE>
<PAGE>
CLASS B CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of fixed rate commercial and multifamily mortgage loans (the "Mortgage
Loans"), all payments on or collections in respect of the Mortgage Loans due
after the Cut-Off Date, all REO Properties and revenues received in respect
thereof, the mortgagee's rights under the Insurance Policies, any Assignment of
Leases, and any guaranties, escrow accounts or other collateral as security for
the Mortgage Loans, and such amounts as shall from time to time be held in the
Certificate Account, the Distribution Accounts, and the REO Accounts, formed and
sold by
NATIONSLINK FUNDING CORPORATION
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN NATIONSLINK
FUNDING CORPORATION, THE MASTER SERVICER, THE SPECIAL SERVICER, THE TRUSTEE, THE
REMIC ADMINISTRATOR OR ANY OF THEIR AFFILIATES. NEITHER THIS CERTIFICATE NOR THE
UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE
UNITED STATES.
THIS CERTIFIES THAT ---------
is the registered owner of the interest evidenced by this Certificate in the
Class B Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of May 1, 1996 (the "Pooling and Servicing
Agreement"), among NationsLink Funding Corporation (hereinafter called the
"Depositor", which term includes any successor entity under the Pooling and
Servicing Agreement), the Trustee, the Special Servicer, the Master Servicer and
the REMIC Administrator. A summary of certain of the pertinent provisions of the
Pooling and Servicing Agreement is set forth hereafter. To the extent not
defined herein, the capitalized terms used herein shall have the meanings
assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate [set forth
on Schedule A attached hereto]4 [specified on the face hereof]5, by the
aggregate initial Certificate Balance of the Class B Certificates. The
Certificates are designated as the NationsLink Funding Corporation, Commercial
Mortgage Pass-Through Certificates, Series 1996-1 and are issued in fourteen
Classes as specifically set forth in the Pooling and Servicing Agreement. The
Certificates will evidence in the aggregate 100% of the beneficial ownership of
the Trust Fund.
This Certificate does not purport to summarize the Pooling and Servicing
Agreement and reference is made to that agreement for information with respect
to the interests, rights, benefits, obligations, proceeds, and duties evidenced
hereby and the rights, duties and obligations of the Trustee. This Certificate
is issued under and is subject to the terms, provisions and conditions of the
Pooling and Servicing Agreement, to which Pooling and Servicing Agreement, as
amended from time to time, the Certificateholder by virtue of the acceptance
hereof assents and by which the Certificateholder is bound. In the case of any
conflict between terms specified in this Certificate and terms specified in the
Pooling and Servicing Agreement, the terms of the Pooling and Servicing
Agreement shall govern.
- ----------
4 If this Certificate represents a Book-Entry Certificate, its Denomination
shall be set forth on Schedule A attached hereto.
5 If this Certificate represents a Definitive Certificate, the Denomination
shall be specified on the face hereof.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the Trustee
shall distribute to the Person in whose name this Certificate is registered as
of the related Record Date, an amount equal to such Person's pro rata share
(based on the Percentage Interest represented by this Certificate) of that
portion of the aggregate amount of principal and interest then distributable, if
any, allocable to the Class of Certificates of the same Class as this
Certificate for such Distribution Date, all as more described in the Pooling and
Servicing Agreement. Holders of this Certificate may be entitled to Prepayment
Premiums and Yield Maintenance Charges as provided in the Pooling and Servicing
Agreement. All sums distributable on this Certificate are payable in the coin or
currency of the United States of America as at the time of payment is legal
tender for the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class B Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount due to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Appraisal Reduction Amounts on the Mortgage
Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit and Appraisal Reduction Amounts on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other things,
certain collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held in the name of the Trustee on behalf of the
holders of Certificates specified in the Pooling and Servicing Agreement and the
Master Servicer (with respect to the Certificate Account) or the Trustee (with
respect to the Distribution Accounts) will be authorized to make withdrawals
therefrom. Amounts on deposit in such accounts may be invested in Eligible
Investments. Interest or other income earned on funds in the Certificate Account
and Distribution Accounts will be paid to the Master Servicer as set forth in
the Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the master
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a Class of
Certificates shall be made on each Distribution Date (other than the final
distribution on any Certificate) to Certificateholders of record on the related
Record Date by check mailed to the address set forth therefor in the Certificate
Register or, provided that such Certificateholder (1) has provided the Trustee
with wire instructions in writing as least five Business Days prior to the
related Record Date and (2) is the Holder of Certificates with an original
Certificate Balance or Notional Amount, as applicable, of at least $5,000,000,
by wire transfer of immediately available funds to the account of such
Certificateholder at a bank or other entity having appropriate facilities
therefor. The final distribution on this Certificate shall be made in like
manner, but only upon presentment and surrender of this Certificate at the
Corporate Trust Office or such other location specified in the notice to
Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of the
failure of Certificateholders to tender their Certificates shall be set aside
and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(h) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Trustee may, directly or through an agent, take appropriate
steps to contact the remaining non-tendering Certificateholders concerning
surrender of their Certificates. The costs and expenses of holding such funds in
trust and of contacting such Certificateholders shall be paid out of such funds.
No interest shall accrue or be payable to any Certificateholder on any amount
held in trust as a result of such Certificateholder's failure to surrender its
Certificate(s) for final payment thereof in accordance with Section 4.01(h) of
the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registerable
in the Certificate Register only upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Trustee or at the
office of its transfer agent, duly endorsed by, or accompanied by an assignment
in the form below or other written instrument of transfer in form satisfactory
to the Certificate Registrar duly executed by the Holder hereof or such Holder's
attorney-in-fact duly authorized in writing, and thereupon one or more new
Certificates of the same Class in authorized Denominations will be issued to the
designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the Class A
Certificates will be issued in book-entry form through the facilities of DTC in
Denominations of not less than $10,000 initial Certificate Balance and in
integral multiples of $1,000 in excess thereof, with one Certificate of such
Class evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class. Subject to the terms of the Pooling and
Servicing Agreement, the Class IO Certificates will be issued in book-entry form
through the facilities of DTC in Denominations of not less than $1,000,000
initial Notional Amount and in integral multiples of $1,000 in excess thereof,
with one Certificate of such Class evidencing an additional amount equal to the
remainder of the initial Notional Amount of such Class. Subject to the terms of
the Pooling and Servicing Agreement, the Class B, Class C, Class D, Class E,
Class F, Class G, Class H and Class UR Certificates will be issued in book-entry
form through the facilities of DTC in Denominations of $250,000 initial
Certificate Balance, and in integral multiples of $1,000 in excess thereof, with
one Certificate of each such Class evidencing an additional amount equal to the
remainder of the initial Certificate Balance of such Class. The Class R and
Class LR Certificates will be issued in fully registered, certificated form, in
Denominations representing Percentage Interests of not less than 20%.
No fee or service charge shall be imposed by the Certificate Registrar for
its services in respect of any registration of transfer or exchange referred to
in Section 5.02 of the Pooling and Servicing Agreement other than for transfers
to Institutional Accredited Investors as provided in Section 5.02(h) thereof. In
connection with any transfer to an Institutional Accredited Investor, the
Transferor shall reimburse the Trust for any costs (including the cost of the
Certificate Registrar's counsel's review of the documents and any legal
opinions, submitted by the transferor or transferee to the Certificate Registrar
as provided in Section 5.02 of the Pooling and Servicing Agreement) incurred by
the Certificate Registrar in connection with such transfer. The Certificate
Registrar may require payment by each transferor of a sum sufficient to cover
any tax, expense or other governmental charge payable in connection with any
such transfer or exchange.
The Depositor, the Trustee, the REMIC Administrator, the Master Servicer,
the Special Servicer, and the Certificate Registrar and any of their agents may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Master
Servicer, the Special Servicer, the REMIC Administrator, the Certificate
Registrar nor any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time by the
Depositor, the Master Servicer, the Special Servicer, the REMIC Administrator
and the Trustee, without the consent of any of the Certificateholders, to cure
any ambiguity, to correct or supplement any provisions herein or therein that
may be inconsistent with any other provisions herein or therein or to correct
any error; to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of the
Upper-Tier REMIC or the Lower-Tier REMIC to avoid or minimize the imposition of
any tax, provided, however, an Opinion of Counsel is obtained to the effect that
such action shall not adversely affect in any material respect the interest of
any Certificateholder and such action is necessary or desirable to avoid such
tax and such action will not result in the withdrawal, downgrade or
qualification of the then-current rating by any Rating Agency, as evidenced by a
letter from such Rating Agency to such effect; to change the timing and/or
nature of deposits into the Certificate Account or Distribution Accounts or to
change the name in which the Certificate Account is maintained, provided,
however, that the P&I Advance Date shall not be later than the related
Distribution Date, an Opinion of Counsel is obtained to the effect that such
action shall not adversely affect in any material respect the interest of any
Certificateholder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating by any Rating Agency, as
evidenced by a letter from such Rating Agency to such effect; to modify,
eliminate or add to the provisions of Section 5.02(d) of the Pooling and
Servicing Agreement or any other provision thereof restricting transfer of the
Residual Certificates by virtue of their being the REMIC "residual interests,"
provided that such change shall not result in the withdrawal, downgrade or
qualification of the then-current rating assigned to any Class of Certificates,
as evidenced by a letter from each Rating Agency to such effect, and such change
shall not, as evidenced by an Opinion of Counsel, cause either the Trust Fund,
the Lower-Tier REMIC, the Upper-Tier REMIC or any of the Certificateholders
(other than the Transferor) to be subject to a federal tax caused by a Transfer
to a Person that is a Disqualified Organization or a Non-U.S. Person; and to
make any other provisions with respect to matters or questions arising under the
Pooling and Servicing Agreement which shall not be materially inconsistent with
the provisions of the Pooling and Servicing Agreement, provided, however, that
such action shall not, as evidenced by an Opinion of Counsel, adversely affect
in any material respect the interest of any Certificateholder not consenting
thereto.
The Pooling and Servicing Agreement may also be amended from time to time
by the Depositor, the Master Servicer, the Special Servicer, the REMIC
Administrator and the Trustee with the consent of the Holders of Certificates
representing not less than 66% of the aggregate Percentage Interests of each
Class of Certificates affected by the amendment for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Pooling and Servicing Agreement or of modifying in any manner the rights of
the Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate
without the consent of such Certificateholder; or
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment,
without the consent of the Holders of all Certificates of such Class
then outstanding.
No amendment shall be made to the Pooling and Servicing Agreement unless
the Trustee shall have received an Opinion of Counsel that such amendment will
not cause either the Upper-Tier REMIC or the Lower-Tier REMIC to fail to qualify
as a REMIC or result in the imposition of a tax on either the Upper-Tier REMIC,
the Lower-Tier REMIC or the Trust Fund.
Any of the Master Servicer or the Depositor will have the option, upon 60
days' prior notice given to the Trustee, each of the other parties to the
Pooling and Servicing Agreement and the Rating Agencies, which notice the
Trustee is required to forward to Certificateholders in the manner set forth in
the Pooling and Servicing Agreement, to purchase all, but not less than all, of
the Mortgage Loans and all property acquired in respect of any Mortgage Loan
remaining in the Trust Fund, and thereby effect termination of the Trust Fund
and early retirement of the then outstanding Certificates, on any Distribution
Date on which the aggregate Stated Principal Balances of the Mortgage Loans and
any REO Loans remaining in the Trust Fund is reduced to less than 5% of the
aggregate Cut-Off Date Principal Balance of all the Mortgage Loans.
The obligations created by the Pooling and Servicing Agreement and the
Trust Fund created thereby (other than the obligation of the Trustee to make
payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Joseph P. Kennedy, the late Ambassador of the United States to
the Court of St. James, living on the date hereof.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Trustee has executed this Certificate on behalf of the
Trust Fund as Trustee under the Pooling and Servicing Agreement and makes no
representation or warranty as to any of the statements contained herein or the
validity or sufficiency of the Certificates or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE CONSTRUED
IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK WITHOUT
REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed under this official seal.
THE CHASE MANHATTAN BANK, N.A., not
in its individual capacity but
solely as Trustee under the Pooling
and Servicing Agreement.
By: ___________________________
AUTHORIZED OFFICER
Dated: May 16, 1996
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS B CERTIFICATES REFERRED TO IN THE WITHIN-MENTIONED
POOLING AND SERVICING AGREEMENT.
THE CHASE MANHATTAN BANK, N.A.,
CERTIFICATE REGISTRAR
By: ___________________________
AUTHORIZED SIGNATORY
<PAGE>
Schedule A
Certificate Balance of
Definitive Certificates
exchanged or transferred
for, or issued in exchange
for or upon transfer of, Remaining Principal
an interest in this Amount of Book- Notation
Date Book-Entry Certificate Entry Certificate Made By
- ---- ---------------------- ------------------- -------
- --------- ---------------------- ------------------- --------
- --------- ---------------------- ------------------- --------
- --------- ---------------------- ------------------- --------
- --------- ---------------------- ------------------- --------
- --------- ---------------------- ------------------- --------
- --------- ---------------------- ------------------- --------
- --------- ---------------------- ------------------- --------
- --------- ---------------------- ------------------- --------
- --------- ---------------------- ------------------- --------
- --------- ---------------------- ------------------- --------
- --------- ---------------------- ------------------- --------
- --------- ---------------------- ------------------- --------
- --------- ---------------------- ------------------- --------
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<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights
of Under Uniform Gifts to
Minors survivorship and not
as tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
- --------------------------------------------------------------------------------
(Please insert Social Security or other identifying number of Assignee)
- --------------------------------------------------------------------------------
(Please print or typewrite name and address of assignee)
- --------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
--------------------------------------------------------
Dated:-------------- NOTICE: The signature to this assignment must
correspond with the name as written upon the face of
this Certificate in every particular without alteration
or enlargement or any change whatever.
- --------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
<PAGE>
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to _________________________________ for the account of
__________________________________ account number _______________ or, if mailed
by check, to _______________________________________. Statements should be
mailed to _______________________________________________________________. This
information is provided by assignee named above, or
______________________________ , as its agent.
<PAGE>
EXHIBIT A-5
NATIONSLINK FUNDING CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 1996-1, CLASS C
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER CLASSES OF
CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING AND SERVICING
AGREEMENT.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS ON THE
CERTIFICATES AND THE PORTION OF COLLATERAL SUPPORT DEFICIT ALLOCABLE TO THIS
CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE
LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN
ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE TRUSTEE. THIS CERTIFICATE
CONSTITUTES A REMIC REGULAR INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED.
[Unless this certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the Certificate
Registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.]1
THIS CERTIFICATE MAY NOT BE PURCHASED BY OR TRANSFERRED TO A PERSON WHICH IS
(A)(1) AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY
PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
("ERISA"), OR (2) A PLAN SUBJECT TO SECTION 4975 OF THE CODE, OR A GOVERNMENTAL
PLAN AS DEFINED IN SECTION 3(32) OF ERISA, SUBJECT TO ANY FEDERAL, STATE OR
LOCAL LAW WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING PROVISIONS OF
ERISA OR THE CODE (COLLECTIVELY, A "PLAN"), OR (B) A COLLECTIVE INVESTMENT FUND
IN WHICH SUCH PLANS ARE INVESTED, OR (C) AN INSURANCE COMPANY USING ASSETS OF
SEPARATE ACCOUNTS OR GENERAL ACCOUNTS WHICH INCLUDE ASSETS OF PLANS (OR WHICH
ARE DEEMED PURSUANT TO ERISA OR ANY SIMILAR LAW TO INCLUDE ASSETS OF PLANS), OR
(D) A PERSON OR ENTITY ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF
SUCH PLAN TO ACQUIRE SUCH CERTIFICATE UNLESS IT IS PURCHASING THE CERTIFICATE
WITH THE ASSETS OF AN INSURANCE COMPANY GENERAL ACCOUNT AND (1) THE EXEMPTIVE
RELIEF AFFORDED UNDER SECTION III OF PROHIBITED TRANSACTION CLASS EXEMPTION
95-60 IS AVAILABLE FOR THE PURCHASE AND HOLDING OF THE CERTIFICATE BY SUCH
PURCHASER OR (2) THE PURCHASE WOULD NOT CONSTITUTE A "PROHIBITED TRANSACTION"
WITHIN THE MEANING OF SECTION 406 OR 407 OF ERISA, SECTION 4975 OF THE CODE OR A
MATERIALLY SIMILAR CHARACTERIZATION UNDER ANY SIMILAR LAW. EACH CERTIFICATE
OWNER SHALL BE DEEMED TO REPRESENT THAT IT IS NOT A PERSON SPECIFIED IN CLAUSES
(A), (B), (C), OR (D) ABOVE. TRANSFEREES OF THIS CERTIFICATE TAKING DELIVERY IN
CERTIFICATED FORM SHALL BE REQUIRED EITHER (i) TO DELIVER A LETTER IN THE FORM
OF EXHIBIT G TO THE POOLING AND SERVICING AGREEMENT TO THE EFFECT THAT IT IS NOT
A PERSON SPECIFIED IN CLAUSES (A), (B), (C) OR (D) ABOVE, OR (ii) IN THE EVENT
THE TRANSFEREE IS SUCH AN ENTITY SPECIFIED IN (A), (B), (C) OR (D) ABOVE, SUCH
ENTITY SHALL PROVIDE AN OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO
THE CERTIFICATE REGISTRAR AND THE DEPOSITOR THAT THE PURCHASE OR HOLDING OF THE
CERTIFICATES BY OR ON BEHALF OF A PLAN WILL NOT CONSTITUTE OR RESULT IN A
"PROHIBITED TRANSACTION" WITHIN THE MEANING OF SECTION 406 OR 407 OF ERISA OR
SECTION 4975 OF THE CODE, AND WILL NOT SUBJECT THE MASTER SERVICER, THE SPECIAL
SERVICER, THE DEPOSITOR, THE TRUSTEE, THE CERTIFICATE REGISTRAR, THE EXTENSION
ADVISER OR THE UNDERWRITER TO ANY OBLIGATION OR LIABILITY UNDER ERISA OR SECTION
4975 OF THE CODE.
<TABLE>
<CAPTION>
<S> <C>
PASS-THROUGH RATE: 7.690% APPROXIMATE AGGREGATE SCHEDULED PRINCIPAL BALANCE OF
THE MORTGAGE LOANS AFTER DEDUCTING PAYMENTS DUE AND
DENOMINATION: [$____________]2 PREPAYMENTS RECEIVED ON OR BEFORE CUT-OFF DATE:
[Set forth on Schedule A]3 $322,639,635
MASTER SERVICER: AMRESCO MANAGEMENT, INC.
DATE OF POOLING AND SERVICING AGREEMENT:
AS OF MAY 1, 1996 SPECIAL SERVICER: AMRESCO MANAGEMENT, INC.
CUT-OFF DATE: MAY 1, 1996, EXCEPT AS TRUSTEE: THE CHASE MANHATTAN BANK, N.A.
DESCRIBED IN THE POOLING AND SERVICING
AGREEMENT REMIC ADMINISTRATOR: NATIONSBANC MORTGAGE CAPITAL
CORPORATION
CLOSING DATE: MAY 16, 1996
CUSIP NO. 63859CAE3
FIRST DISTRIBUTION DATE:
JUNE 20, 1996 CERTIFICATE NO.: C-1
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE
OF THE CLASS C CERTIFICATES
AS OF THE CLOSING DATE: $19,358,378
<FN>
1 If this Certificate represents a Book-Entry Certificate registered in the name
of Cede & Co., it shall have this legend.
2 If this Certificate represents a Definitive Certificate, the Denomination
shall be specified on the face hereof.
3 If this Certificate represents a Book-Entry Certificate, its Denomination
shall be set forth on Schedule A attached hereto.
</FN>
</TABLE>
<PAGE>
CLASS C CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of fixed rate commercial and multifamily mortgage loans (the "Mortgage
Loans"), all payments on or collections in respect of the Mortgage Loans due
after the Cut-Off Date, all REO Properties and revenues received in respect
thereof, the mortgagee's rights under the Insurance Policies, any Assignment of
Leases, and any guaranties, escrow accounts or other collateral as security for
the Mortgage Loans, and such amounts as shall from time to time be held in the
Certificate Account, the Distribution Accounts, and the REO Accounts, formed and
sold by
NATIONSLINK FUNDING CORPORATION
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN NATIONSLINK
FUNDING CORPORATION, THE MASTER SERVICER, THE SPECIAL SERVICER, THE TRUSTEE, THE
REMIC ADMINISTRATOR OR ANY OF THEIR AFFILIATES. NEITHER THIS CERTIFICATE NOR THE
UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE
UNITED STATES.
THIS CERTIFIES THAT ---------------
is the registered owner of the interest evidenced by this Certificate in the
Class C Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of May 1, 1996 (the "Pooling and Servicing
Agreement"), among NationsLink Funding Corporation (hereinafter called the
"Depositor", which term includes any successor entity under the Pooling and
Servicing Agreement), the Trustee, the Special Servicer, the Master Servicer and
the REMIC Administrator. A summary of certain of the pertinent provisions of the
Pooling and Servicing Agreement is set forth hereafter. To the extent not
defined herein, the capitalized terms used herein shall have the meanings
assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate [set forth
on Schedule A attached hereto]4 [specified on the face hereof]5, by the
aggregate initial Certificate Balance of the Class C Certificates. The
Certificates are designated as the NationsLink Funding Corporation, Commercial
Mortgage Pass-Through Certificates, Series 1996-1 and are issued in fourteen
Classes as specifically set forth in the Pooling and Servicing Agreement. The
Certificates will evidence in the aggregate 100% of the beneficial ownership of
the Trust Fund.
This Certificate does not purport to summarize the Pooling and Servicing
Agreement and reference is made to that agreement for information with respect
to the interests, rights, benefits, obligations, proceeds, and duties evidenced
hereby and the rights, duties and obligations of the Trustee. This Certificate
is issued under and is subject to the terms, provisions and conditions of the
Pooling and Servicing Agreement, to which Pooling and Servicing Agreement, as
amended from time to time, the Certificateholder by virtue of the acceptance
hereof assents and by which the Certificateholder is bound. In the case of any
conflict between terms specified in this Certificate and terms specified in the
Pooling and Servicing Agreement, the terms of the Pooling and Servicing
Agreement shall govern.
- ----------
4 If this Certificate represents a Book-Entry Certificate, its Denomination
shall be set forth on Schedule A attached hereto.
5 If this Certificate represents a Definitive Certificate, the Denomination
shall be specified on the face hereof.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the Trustee
shall distribute to the Person in whose name this Certificate is registered as
of the related Record Date, an amount equal to such Person's pro rata share
(based on the Percentage Interest represented by this Certificate) of that
portion of the aggregate amount of principal and interest then distributable, if
any, allocable to the Class of Certificates of the same Class as this
Certificate for such Distribution Date, all as more described in the Pooling and
Servicing Agreement. All sums distributable on this Certificate are payable in
the coin or currency of the United States of America as at the time of payment
is legal tender for the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class C Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount due to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Appraisal Reduction Amounts on the Mortgage
Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit and Appraisal Reduction Amounts on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other things,
certain collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held in the name of the Trustee on behalf of the
holders of Certificates specified in the Pooling and Servicing Agreement and the
Master Servicer (with respect to the Certificate Account) or the Trustee (with
respect to the Distribution Accounts) will be authorized to make withdrawals
therefrom. Amounts on deposit in such accounts may be invested in Eligible
Investments. Interest or other income earned on funds in the Certificate Account
and Distribution Accounts will be paid to the Master Servicer as set forth in
the Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the master
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a Class of
Certificates shall be made on each Distribution Date (other than the final
distribution on any Certificate) to Certificateholders of record on the related
Record Date by check mailed to the address set forth therefor in the Certificate
Register or, provided that such Certificateholder (1) has provided the Trustee
with wire instructions in writing as least five Business Days prior to the
related Record Date and (2) is the Holder of Certificates with an original
Certificate Balance or Notional Amount, as applicable, of at least $5,000,000,
by wire transfer of immediately available funds to the account of such
Certificateholder at a bank or other entity having appropriate facilities
therefor. The final distribution on this Certificate shall be made in like
manner, but only upon presentment and surrender of this Certificate at the
Corporate Trust Office or such other location specified in the notice to
Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of the
failure of Certificateholders to tender their Certificates shall be set aside
and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(h) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Trustee may, directly or through an agent, take appropriate
steps to contact the remaining non-tendering Certificateholders concerning
surrender of their Certificates. The costs and expenses of holding such funds in
trust and of contacting such Certificateholders shall be paid out of such funds.
No interest shall accrue or be payable to any Certificateholder on any amount
held in trust as a result of such Certificateholder's failure to surrender its
Certificate(s) for final payment thereof in accordance with Section 4.01(h) of
the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registerable
in the Certificate Register only upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Trustee or at the
office of its transfer agent, duly endorsed by, or accompanied by an assignment
in the form below or other written instrument of transfer in form satisfactory
to the Certificate Registrar duly executed by the Holder hereof or such Holder's
attorney-in-fact duly authorized in writing, and thereupon one or more new
Certificates of the same Class in authorized Denominations will be issued to the
designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the Class A
Certificates will be issued in book-entry form through the facilities of DTC in
Denominations of not less than $10,000 initial Certificate Balance and in
integral multiples of $1,000 in excess thereof, with one Certificate of such
Class evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class. Subject to the terms of the Pooling and
Servicing Agreement, the Class IO Certificates will be issued in book-entry form
through the facilities of DTC in Denominations of not less than $1,000,000
initial Notional Amount and in integral multiples of $1,000 in excess thereof,
with one Certificate of such Class evidencing an additional amount equal to the
remainder of the initial Notional Amount of such Class. Subject to the terms of
the Pooling and Servicing Agreement, the Class B, Class C, Class D, Class E,
Class F, Class G, Class H and Class UR Certificates will be issued in book-entry
form through the facilities of DTC in Denominations of $250,000 initial
Certificate Balance, and in integral multiples of $1,000 in excess thereof, with
one Certificate of each such Class evidencing an additional amount equal to the
remainder of the initial Certificate Balance of such Class. The Class R and
Class LR Certificates will be issued in fully registered, certificated form, in
Denominations representing Percentage Interests of not less than 20%.
No fee or service charge shall be imposed by the Certificate Registrar for
its services in respect of any registration of transfer or exchange referred to
in Section 5.02 of the Pooling and Servicing Agreement other than for transfers
to Institutional Accredited Investors as provided in Section 5.02(h) thereof. In
connection with any transfer to an Institutional Accredited Investor, the
Transferor shall reimburse the Trust for any costs (including the cost of the
Certificate Registrar's counsel's review of the documents and any legal
opinions, submitted by the transferor or transferee to the Certificate Registrar
as provided in Section 5.02 of the Pooling and Servicing Agreement) incurred by
the Certificate Registrar in connection with such transfer. The Certificate
Registrar may require payment by each transferor of a sum sufficient to cover
any tax, expense or other governmental charge payable in connection with any
such transfer or exchange.
The Depositor, the Trustee, the REMIC Administrator, the Master Servicer,
the Special Servicer, and the Certificate Registrar and any of their agents may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Master
Servicer, the Special Servicer, the REMIC Administrator, the Certificate
Registrar nor any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time by the
Depositor, the Master Servicer, the Special Servicer, the REMIC Administrator
and the Trustee, without the consent of any of the Certificateholders, to cure
any ambiguity, to correct or supplement any provisions herein or therein that
may be inconsistent with any other provisions herein or therein or to correct
any error; to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of the
Upper-Tier REMIC or the Lower-Tier REMIC to avoid or minimize the imposition of
any tax, provided, however, an Opinion of Counsel is obtained to the effect that
such action shall not adversely affect in any material respect the interest of
any Certificateholder and such action is necessary or desirable to avoid such
tax and such action will not result in the withdrawal, downgrade or
qualification of the then-current rating by any Rating Agency, as evidenced by a
letter from such Rating Agency to such effect; to change the timing and/or
nature of deposits into the Certificate Account or Distribution Accounts or to
change the name in which the Certificate Account is maintained, provided,
however, that the P&I Advance Date shall not be later than the related
Distribution Date, an Opinion of Counsel is obtained to the effect that such
action shall not adversely affect in any material respect the interest of any
Certificateholder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating by any Rating Agency, as
evidenced by a letter from such Rating Agency to such effect; to modify,
eliminate or add to the provisions of Section 5.02(d) of the Pooling and
Servicing Agreement or any other provision thereof restricting transfer of the
Residual Certificates by virtue of their being the REMIC "residual interests,"
provided that such change shall not result in the withdrawal, downgrade or
qualification of the then-current rating assigned to any Class of Certificates,
as evidenced by a letter from each Rating Agency to such effect, and such change
shall not, as evidenced by an Opinion of Counsel, cause either the Trust Fund,
the Lower-Tier REMIC, the Upper-Tier REMIC or any of the Certificateholders
(other than the Transferor) to be subject to a federal tax caused by a Transfer
to a Person that is a Disqualified Organization or a Non-U.S. Person; and to
make any other provisions with respect to matters or questions arising under the
Pooling and Servicing Agreement which shall not be materially inconsistent with
the provisions of the Pooling and Servicing Agreement, provided, however, that
such action shall not, as evidenced by an Opinion of Counsel, adversely affect
in any material respect the interest of any Certificateholder not consenting
thereto.
The Pooling and Servicing Agreement may also be amended from time to time
by the Depositor, the Master Servicer, the Special Servicer, the REMIC
Administrator and the Trustee with the consent of the Holders of Certificates
representing not less than 66% of the aggregate Percentage Interests of each
Class of Certificates affected by the amendment for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Pooling and Servicing Agreement or of modifying in any manner the rights of
the Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate
without the consent of such Certificateholder; or
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment,
without the consent of the Holders of all Certificates of such Class
then outstanding.
No amendment shall be made to the Pooling and Servicing Agreement unless
the Trustee shall have received an Opinion of Counsel that such amendment will
not cause either the Upper-Tier REMIC or the Lower-Tier REMIC to fail to qualify
as a REMIC or result in the imposition of a tax on either the Upper-Tier REMIC,
the Lower-Tier REMIC or the Trust Fund.
Any of the Master Servicer or the Depositor will have the option, upon 60
days' prior notice given to the Trustee, each of the other parties to the
Pooling and Servicing Agreement and the Rating Agencies, which notice the
Trustee is required to forward to Certificateholders in the manner set forth in
the Pooling and Servicing Agreement, to purchase all, but not less than all, of
the Mortgage Loans and all property acquired in respect of any Mortgage Loan
remaining in the Trust Fund, and thereby effect termination of the Trust Fund
and early retirement of the then outstanding Certificates, on any Distribution
Date on which the aggregate Stated Principal Balances of the Mortgage Loans and
any REO Loans remaining in the Trust Fund is reduced to less than 5% of the
aggregate Cut-Off Date Principal Balance of all the Mortgage Loans.
The obligations created by the Pooling and Servicing Agreement and the
Trust Fund created thereby (other than the obligation of the Trustee to make
payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Joseph P. Kennedy, the late Ambassador of the United States to
the Court of St. James, living on the date hereof.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Trustee has executed this Certificate on behalf of the
Trust Fund as Trustee under the Pooling and Servicing Agreement and makes no
representation or warranty as to any of the statements contained herein or the
validity or sufficiency of the Certificates or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE CONSTRUED
IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK WITHOUT
REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed under this official seal.
THE CHASE MANHATTAN BANK, N.A., not
in its individual capacity but
solely as Trustee under the Pooling
and Servicing Agreement.
By: ___________________________
AUTHORIZED OFFICER
Dated: May 16, 1996
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS C CERTIFICATES REFERRED TO IN THE WITHIN-MENTIONED
POOLING AND SERVICING AGREEMENT.
THE CHASE MANHATTAN BANK, N.A.,
CERTIFICATE REGISTRAR
By: ___________________________
AUTHORIZED SIGNATORY
<PAGE>
Schedule A
Certificate Balance of
Definitive Certificates
exchanged or transferred
for, or issued in exchange
for or upon transfer of, Remaining Principal
an interest in this Amount of Book- Notation
Date Book-Entry Certificate Entry Certificate Made By
- ---- ---------------------- ------------------- -------
- --------- ---------------------- ------------------- --------
- --------- ---------------------- ------------------- --------
- --------- ---------------------- ------------------- --------
- --------- ---------------------- ------------------- --------
- --------- ---------------------- ------------------- --------
- --------- ---------------------- ------------------- --------
- --------- ---------------------- ------------------- --------
- --------- ---------------------- ------------------- --------
- --------- ---------------------- ------------------- --------
- --------- ---------------------- ------------------- --------
- --------- ---------------------- ------------------- --------
- --------- ---------------------- ------------------- --------
- --------- ---------------------- ------------------- --------
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<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights
of Under Uniform Gifts to
Minors survivorship and not
as tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
- --------------------------------------------------------------------------------
(Please insert Social Security or other identifying number of Assignee)
- --------------------------------------------------------------------------------
(Please print or typewrite name and address of assignee)
- --------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
--------------------------------------------------------
Dated:----------- NOTICE: The signature to this assignment must
correspond with the name as written upon the face of
this Certificate in every particular without alteration
or enlargement or any change whatever.
- --------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
<PAGE>
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to _________________________________ for the account of
__________________________________ account number _______________ or, if mailed
by check, to _______________________________________. Statements should be
mailed to _______________________________________________________________. This
information is provided by assignee named above, or
______________________________ , as its agent.
<PAGE>
EXHIBIT A-6
NATIONSLINK FUNDING CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 1996-1, CLASS D
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER CLASSES OF
CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING AND SERVICING
AGREEMENT.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS ON THE
CERTIFICATES AND THE PORTION OF COLLATERAL SUPPORT DEFICIT ALLOCABLE TO THIS
CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE
LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN
ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE TRUSTEE. THIS CERTIFICATE
CONSTITUTES A REMIC REGULAR INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED.
[Unless this certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the Certificate
Registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.]1
THIS CERTIFICATE MAY NOT BE PURCHASED BY OR TRANSFERRED TO A PERSON WHICH IS
(A)(1) AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY
PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
("ERISA"), OR (2) A PLAN SUBJECT TO SECTION 4975 OF THE CODE, OR A GOVERNMENTAL
PLAN AS DEFINED IN SECTION 3(32) OF ERISA, SUBJECT TO ANY FEDERAL, STATE OR
LOCAL LAW WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING PROVISIONS OF
ERISA OR THE CODE (COLLECTIVELY, A "PLAN"), OR (B) A COLLECTIVE INVESTMENT FUND
IN WHICH SUCH PLANS ARE INVESTED, OR (C) AN INSURANCE COMPANY USING ASSETS OF
SEPARATE ACCOUNTS OR GENERAL ACCOUNTS WHICH INCLUDE ASSETS OF PLANS (OR WHICH
ARE DEEMED PURSUANT TO ERISA OR ANY SIMILAR LAW TO INCLUDE ASSETS OF PLANS), OR
(D) A PERSON OR ENTITY ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF
SUCH PLAN TO ACQUIRE SUCH CERTIFICATE UNLESS IT IS PURCHASING THE CERTIFICATE
WITH THE ASSETS OF AN INSURANCE COMPANY GENERAL ACCOUNT AND (1) THE EXEMPTIVE
RELIEF AFFORDED UNDER SECTION III OF PROHIBITED TRANSACTION CLASS EXEMPTION
95-60 IS AVAILABLE FOR THE PURCHASE AND HOLDING OF THE CERTIFICATE BY SUCH
PURCHASER OR (2) THE PURCHASE WOULD NOT CONSTITUTE A "PROHIBITED TRANSACTION"
WITHIN THE MEANING OF SECTION 406 OR 407 OF ERISA, SECTION 4975 OF THE CODE OR A
MATERIALLY SIMILAR CHARACTERIZATION UNDER ANY SIMILAR LAW. EACH CERTIFICATE
OWNER SHALL BE DEEMED TO REPRESENT THAT IT IS NOT A PERSON SPECIFIED IN CLAUSES
(A), (B), (C), OR (D) ABOVE. TRANSFEREES OF THIS CERTIFICATE TAKING DELIVERY IN
CERTIFICATED FORM SHALL BE REQUIRED EITHER (i) TO DELIVER A LETTER IN THE FORM
OF EXHIBIT G TO THE POOLING AND SERVICING AGREEMENT TO THE EFFECT THAT IT IS NOT
A PERSON SPECIFIED IN CLAUSES (A), (B), (C) OR (D) ABOVE, OR (ii) IN THE EVENT
THE TRANSFEREE IS SUCH AN ENTITY SPECIFIED IN (A), (B), (C) OR (D) ABOVE, SUCH
ENTITY SHALL PROVIDE AN OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO
THE CERTIFICATE REGISTRAR AND THE DEPOSITOR THAT THE PURCHASE OR HOLDING OF THE
CERTIFICATES BY OR ON BEHALF OF A PLAN WILL NOT CONSTITUTE OR RESULT IN A
"PROHIBITED TRANSACTION" WITHIN THE MEANING OF SECTION 406 OR 407 OF ERISA OR
SECTION 4975 OF THE CODE, AND WILL NOT SUBJECT THE MASTER SERVICER, THE SPECIAL
SERVICER, THE DEPOSITOR, THE TRUSTEE, THE CERTIFICATE REGISTRAR, THE EXTENSION
ADVISER OR THE UNDERWRITER TO ANY OBLIGATION OR LIABILITY UNDER ERISA OR SECTION
4975 OF THE CODE.
THIS CERTIFICATE IS ISSUED ON MAY 16, 1996, AND BASED ON ITS ISSUE PRICE OF
96.51782%, INCLUDING ACCRUED INTEREST, AND A STATED REDEMPTION PRICE AT MATURITY
EQUAL TO ITS INITIAL PRINCIPAL BALANCE, IS ISSUED WITH ORIGINAL ISSUE DISCOUNT
("OID") FOR FEDERAL INCOME TAX PURPOSES. ASSUMING THAT THIS CERTIFICATE PAYS IN
ACCORDANCE WITH PROJECTED CASH FLOWS REFLECTING THE PREPAYMENT ASSUMPTION OF 0%
CPR (AS DEFINED IN THE PROSPECTUS SUPPLEMENT DATED MAY 2, 1996 WITH RESPECT TO
THE OFFERING OF THE CLASS A CERTIFICATES, CLASS B CERTIFICATES, CLASS C
CERTIFICATES, CLASS D CERTIFICATES AND CLASS E CERTIFICATES) USED TO PRICE THIS
CERTIFICATE: (I) THE AMOUNT OF OID AS A PERCENTAGE OF THE INITIAL PRINCIPAL
BALANCE OF THIS CERTIFICATE IS APPROXIMATELY 3.48218333%; AND (II) THE ANNUAL
YIELD TO MATURITY OF THIS CERTIFICATE, COMPOUNDED MONTHLY, IS APPROXIMATELY
8.20%. THERE IS NO SHORT FIRST ACCRUAL PERIOD.
<TABLE>
<CAPTION>
<S> <C>
PASS-THROUGH RATE: 7.690% APPROXIMATE AGGREGATE SCHEDULED PRINCIPAL BALANCE OF
THE MORTGAGE LOANS AFTER DEDUCTING PAYMENTS DUE AND
DENOMINATION: [$____________]2 PREPAYMENTS RECEIVED ON OR BEFORE CUT-OFF DATE:
[Set forth on Schedule A]3 $322,639,635
MASTER SERVICER: AMRESCO MANAGEMENT, INC.
DATE OF POOLING AND SERVICING AGREEMENT:
AS OF MAY 1, 1996 SPECIAL SERVICER: AMRESCO MANAGEMENT, INC.
CUT-OFF DATE: MAY 1, 1996, EXCEPT AS TRUSTEE: THE CHASE MANHATTAN BANK, N.A.
DESCRIBED IN THE POOLING AND SERVICING
AGREEMENT REMIC ADMINISTRATOR: NATIONSBANC MORTGAGE CAPITAL
CORPORATION
CLOSING DATE: MAY 16, 1996
CUSIP NO. 63859CAF0
FIRST DISTRIBUTION DATE:
JUNE 20, 1996 CERTIFICATE NO.: D-1
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE
OF THE CLASS D CERTIFICATES
AS OF THE CLOSING DATE: $17,745,179
<FN>
1 If this Certificate represents a Book-Entry Certificate registered in the name
of Cede & Co., it shall have this legend.
2 If this Certificate represents a Definitive Certificate, the Denomination
shall be specified on the face hereof.
3 If this Certificate represents a Book-Entry Certificate, its Denomination
shall be set forth on Schedule A attached hereto.
</FN>
</TABLE>
<PAGE>
CLASS D CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of fixed rate commercial and multifamily mortgage loans (the "Mortgage
Loans"), all payments on or collections in respect of the Mortgage Loans due
after the Cut-Off Date, all REO Properties and revenues received in respect
thereof, the mortgagee's rights under the Insurance Policies, any Assignment of
Leases, and any guaranties, escrow accounts or other collateral as security for
the Mortgage Loans, and such amounts as shall from time to time be held in the
Certificate Account, the Distribution Accounts, and the REO Accounts, formed and
sold by
NATIONSLINK FUNDING CORPORATION
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN NATIONSLINK
FUNDING CORPORATION, THE MASTER SERVICER, THE SPECIAL SERVICER, THE TRUSTEE, THE
REMIC ADMINISTRATOR OR ANY OF THEIR AFFILIATES. NEITHER THIS CERTIFICATE NOR THE
UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE
UNITED STATES.
THIS CERTIFIES THAT ------------------
is the registered owner of the interest evidenced by this Certificate in the
Class D Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of May 1, 1996 (the "Pooling and Servicing
Agreement"), among NationsLink Funding Corporation (hereinafter called the
"Depositor", which term includes any successor entity under the Pooling and
Servicing Agreement), the Trustee, the Special Servicer, the Master Servicer and
the REMIC Administrator. A summary of certain of the pertinent provisions of the
Pooling and Servicing Agreement is set forth hereafter. To the extent not
defined herein, the capitalized terms used herein shall have the meanings
assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate [set forth
on Schedule A attached hereto]4 [specified on the face hereof]5, by the
aggregate initial Certificate Balance of the Class D Certificates. The
Certificates are designated as the NationsLink Funding Corporation, Commercial
Mortgage Pass-Through Certificates, Series 1996-1 and are issued in fourteen
Classes as specifically set forth in the Pooling and Servicing Agreement. The
Certificates will evidence in the aggregate 100% of the beneficial ownership of
the Trust Fund.
This Certificate does not purport to summarize the Pooling and Servicing
Agreement and reference is made to that agreement for information with respect
to the interests, rights, benefits, obligations, proceeds, and duties evidenced
hereby and the rights, duties and obligations of the Trustee. This Certificate
is issued under and is subject to the terms, provisions and conditions of the
Pooling and Servicing Agreement, to which Pooling and Servicing Agreement, as
amended from time to time, the Certificateholder by virtue of the acceptance
hereof assents and by which the Certificateholder is bound. In the case of any
conflict between terms specified in this Certificate and terms specified in the
Pooling and Servicing Agreement, the terms of the Pooling and Servicing
Agreement shall govern.
- ----------
4 If this Certificate represents a Book-Entry Certificate, its Denomination
shall be set forth on Schedule A attached hereto.
5 If this Certificate represents a Definitive Certificate, the Denomination
shall be specified on the face hereof.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the Trustee
shall distribute to the Person in whose name this Certificate is registered as
of the related Record Date, an amount equal to such Person's pro rata share
(based on the Percentage Interest represented by this Certificate) of that
portion of the aggregate amount of principal and interest then distributable, if
any, allocable to the Class of Certificates of the same Class as this
Certificate for such Distribution Date, all as more described in the Pooling and
Servicing Agreement. All sums distributable on this Certificate are payable in
the coin or currency of the United States of America as at the time of payment
is legal tender for the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class D Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount due to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Appraisal Reduction Amounts on the Mortgage
Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit and Appraisal Reduction Amounts on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other things,
certain collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held in the name of the Trustee on behalf of the
holders of Certificates specified in the Pooling and Servicing Agreement and the
Master Servicer (with respect to the Certificate Account) or the Trustee (with
respect to the Distribution Accounts) will be authorized to make withdrawals
therefrom. Amounts on deposit in such accounts may be invested in Eligible
Investments. Interest or other income earned on funds in the Certificate Account
and Distribution Accounts will be paid to the Master Servicer as set forth in
the Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the master
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a Class of
Certificates shall be made on each Distribution Date (other than the final
distribution on any Certificate) to Certificateholders of record on the related
Record Date by check mailed to the address set forth therefor in the Certificate
Register or, provided that such Certificateholder (1) has provided the Trustee
with wire instructions in writing as least five Business Days prior to the
related Record Date and (2) is the Holder of Certificates with an original
Certificate Balance or Notional Amount, as applicable, of at least $5,000,000,
by wire transfer of immediately available funds to the account of such
Certificateholder at a bank or other entity having appropriate facilities
therefor. The final distribution on this Certificate shall be made in like
manner, but only upon presentment and surrender of this Certificate at the
Corporate Trust Office or such other location specified in the notice to
Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of the
failure of Certificateholders to tender their Certificates shall be set aside
and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(h) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Trustee may, directly or through an agent, take appropriate
steps to contact the remaining non-tendering Certificateholders concerning
surrender of their Certificates. The costs and expenses of holding such funds in
trust and of contacting such Certificateholders shall be paid out of such funds.
No interest shall accrue or be payable to any Certificateholder on any amount
held in trust as a result of such Certificateholder's failure to surrender its
Certificate(s) for final payment thereof in accordance with Section 4.01(h) of
the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registerable
in the Certificate Register only upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Trustee or at the
office of its transfer agent, duly endorsed by, or accompanied by an assignment
in the form below or other written instrument of transfer in form satisfactory
to the Certificate Registrar duly executed by the Holder hereof or such Holder's
attorney-in-fact duly authorized in writing, and thereupon one or more new
Certificates of the same Class in authorized Denominations will be issued to the
designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the Class A
Certificates will be issued in book-entry form through the facilities of DTC in
Denominations of not less than $10,000 initial Certificate Balance and in
integral multiples of $1,000 in excess thereof, with one Certificate of such
Class evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class. Subject to the terms of the Pooling and
Servicing Agreement, the Class IO Certificates will be issued in book-entry form
through the facilities of DTC in Denominations of not less than $1,000,000
initial Notional Amount and in integral multiples of $1,000 in excess thereof,
with one Certificate of such Class evidencing an additional amount equal to the
remainder of the initial Notional Amount of such Class. Subject to the terms of
the Pooling and Servicing Agreement, the Class B, Class C, Class D, Class E,
Class F, Class G, Class H and Class UR Certificates will be issued in book-entry
form through the facilities of DTC in Denominations of $250,000 initial
Certificate Balance, and in integral multiples of $1,000 in excess thereof, with
one Certificate of each such Class evidencing an additional amount equal to the
remainder of the initial Certificate Balance of such Class. The Class R and
Class LR Certificates will be issued in fully registered, certificated form, in
Denominations representing Percentage Interests of not less than 20%.
No fee or service charge shall be imposed by the Certificate Registrar for
its services in respect of any registration of transfer or exchange referred to
in Section 5.02 of the Pooling and Servicing Agreement other than for transfers
to Institutional Accredited Investors as provided in Section 5.02(h) thereof. In
connection with any transfer to an Institutional Accredited Investor, the
Transferor shall reimburse the Trust for any costs (including the cost of the
Certificate Registrar's counsel's review of the documents and any legal
opinions, submitted by the transferor or transferee to the Certificate Registrar
as provided in Section 5.02 of the Pooling and Servicing Agreement) incurred by
the Certificate Registrar in connection with such transfer. The Certificate
Registrar may require payment by each transferor of a sum sufficient to cover
any tax, expense or other governmental charge payable in connection with any
such transfer or exchange.
The Depositor, the Trustee, the REMIC Administrator, the Master Servicer,
the Special Servicer, and the Certificate Registrar and any of their agents may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Master
Servicer, the Special Servicer, the REMIC Administrator, the Certificate
Registrar nor any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time by the
Depositor, the Master Servicer, the Special Servicer, the REMIC Administrator
and the Trustee, without the consent of any of the Certificateholders, to cure
any ambiguity, to correct or supplement any provisions herein or therein that
may be inconsistent with any other provisions herein or therein or to correct
any error; to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of the
Upper-Tier REMIC or the Lower-Tier REMIC to avoid or minimize the imposition of
any tax, provided, however, an Opinion of Counsel is obtained to the effect that
such action shall not adversely affect in any material respect the interest of
any Certificateholder and such action is necessary or desirable to avoid such
tax and such action will not result in the withdrawal, downgrade or
qualification of the then-current rating by any Rating Agency, as evidenced by a
letter from such Rating Agency to such effect; to change the timing and/or
nature of deposits into the Certificate Account or Distribution Accounts or to
change the name in which the Certificate Account is maintained, provided,
however, that the P&I Advance Date shall not be later than the related
Distribution Date, an Opinion of Counsel is obtained to the effect that such
action shall not adversely affect in any material respect the interest of any
Certificateholder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating by any Rating Agency, as
evidenced by a letter from such Rating Agency to such effect; to modify,
eliminate or add to the provisions of Section 5.02(d) of the Pooling and
Servicing Agreement or any other provision thereof restricting transfer of the
Residual Certificates by virtue of their being the REMIC "residual interests,"
provided that such change shall not result in the withdrawal, downgrade or
qualification of the then-current rating assigned to any Class of Certificates,
as evidenced by a letter from each Rating Agency to such effect, and such change
shall not, as evidenced by an Opinion of Counsel, cause either the Trust Fund,
the Lower-Tier REMIC, the Upper-Tier REMIC or any of the Certificateholders
(other than the Transferor) to be subject to a federal tax caused by a Transfer
to a Person that is a Disqualified Organization or a Non-U.S. Person; and to
make any other provisions with respect to matters or questions arising under the
Pooling and Servicing Agreement which shall not be materially inconsistent with
the provisions of the Pooling and Servicing Agreement, provided, however, that
such action shall not, as evidenced by an Opinion of Counsel, adversely affect
in any material respect the interest of any Certificateholder not consenting
thereto.
The Pooling and Servicing Agreement may also be amended from time to time
by the Depositor, the Master Servicer, the Special Servicer, the REMIC
Administrator and the Trustee with the consent of the Holders of Certificates
representing not less than 66% of the aggregate Percentage Interests of each
Class of Certificates affected by the amendment for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Pooling and Servicing Agreement or of modifying in any manner the rights of
the Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate
without the consent of such Certificateholder; or
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment,
without the consent of the Holders of all Certificates of such Class
then outstanding.
No amendment shall be made to the Pooling and Servicing Agreement unless
the Trustee shall have received an Opinion of Counsel that such amendment will
not cause either the Upper-Tier REMIC or the Lower-Tier REMIC to fail to qualify
as a REMIC or result in the imposition of a tax on either the Upper-Tier REMIC,
the Lower-Tier REMIC or the Trust Fund.
Any of the Master Servicer or the Depositor will have the option, upon 60
days' prior notice given to the Trustee, each of the other parties to the
Pooling and Servicing Agreement and the Rating Agencies, which notice the
Trustee is required to forward to Certificateholders in the manner set forth in
the Pooling and Servicing Agreement, to purchase all, but not less than all, of
the Mortgage Loans and all property acquired in respect of any Mortgage Loan
remaining in the Trust Fund, and thereby effect termination of the Trust Fund
and early retirement of the then outstanding Certificates, on any Distribution
Date on which the aggregate Stated Principal Balances of the Mortgage Loans and
any REO Loans remaining in the Trust Fund is reduced to less than 5% of the
aggregate Cut-Off Date Principal Balance of all the Mortgage Loans.
The obligations created by the Pooling and Servicing Agreement and the
Trust Fund created thereby (other than the obligation of the Trustee to make
payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Joseph P. Kennedy, the late Ambassador of the United States to
the Court of St. James, living on the date hereof.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Trustee has executed this Certificate on behalf of the
Trust Fund as Trustee under the Pooling and Servicing Agreement and makes no
representation or warranty as to any of the statements contained herein or the
validity or sufficiency of the Certificates or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE CONSTRUED
IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK WITHOUT
REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed under this official seal.
THE CHASE MANHATTAN BANK, N.A., not
in its individual capacity but
solely as Trustee under the Pooling
and Servicing Agreement.
By: ___________________________
AUTHORIZED OFFICER
Dated: May 16, 1996
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS D CERTIFICATES REFERRED TO IN THE WITHIN-MENTIONED
POOLING AND SERVICING AGREEMENT.
THE CHASE MANHATTAN BANK, N.A.,
CERTIFICATE REGISTRAR
By: ___________________________
AUTHORIZED SIGNATORY
<PAGE>
Schedule A
Certificate Balance of
Definitive Certificates
exchanged or transferred
for, or issued in exchange
for or upon transfer of, Remaining Principal
an interest in this Amount of Book- Notation
Date Book-Entry Certificate Entry Certificate Made By
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<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights
of Under Uniform Gifts to
Minors survivorship and not
as tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
- --------------------------------------------------------------------------------
(Please insert Social Security or other identifying number of Assignee)
- --------------------------------------------------------------------------------
(Please print or typewrite name and address of assignee)
- --------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
--------------------------------------------------------
Dated:------------- NOTICE: The signature to this assignment must
correspond with the name as written upon the face of
this Certificate in every particular without alteration
or enlargement or any change whatever.
- --------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
<PAGE>
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to _________________________________ for the account of
__________________________________ account number _______________ or, if mailed
by check, to _______________________________________. Statements should be
mailed to _______________________________________________________________. This
information is provided by assignee named above, or
______________________________ , as its agent.
<PAGE>
EXHIBIT A-7
NATIONSLINK FUNDING CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 1996-1, CLASS E
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER CLASSES OF
CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING AND SERVICING
AGREEMENT.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS ON THE
CERTIFICATES AND THE PORTION OF COLLATERAL SUPPORT DEFICIT ALLOCABLE TO THIS
CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE
LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN
ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE TRUSTEE. THIS CERTIFICATE
CONSTITUTES A REMIC REGULAR INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED.
[Unless this certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the Certificate
Registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.]1
THIS CERTIFICATE MAY NOT BE PURCHASED BY OR TRANSFERRED TO A PERSON WHICH IS
(A)(1) AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY
PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
("ERISA"), OR (2) A PLAN SUBJECT TO SECTION 4975 OF THE CODE, OR A GOVERNMENTAL
PLAN AS DEFINED IN SECTION 3(32) OF ERISA, SUBJECT TO ANY FEDERAL, STATE OR
LOCAL LAW WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING PROVISIONS OF
ERISA OR THE CODE (COLLECTIVELY, A "PLAN"), OR (B) A COLLECTIVE INVESTMENT FUND
IN WHICH SUCH PLANS ARE INVESTED, OR (C) AN INSURANCE COMPANY USING ASSETS OF
SEPARATE ACCOUNTS OR GENERAL ACCOUNTS WHICH INCLUDE ASSETS OF PLANS (OR WHICH
ARE DEEMED PURSUANT TO ERISA OR ANY SIMILAR LAW TO INCLUDE ASSETS OF PLANS), OR
(D) A PERSON OR ENTITY ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF
SUCH PLAN TO ACQUIRE SUCH CERTIFICATE UNLESS IT IS PURCHASING THE CERTIFICATE
WITH THE ASSETS OF AN INSURANCE COMPANY GENERAL ACCOUNT AND (1) THE EXEMPTIVE
RELIEF AFFORDED UNDER SECTION III OF PROHIBITED TRANSACTION CLASS EXEMPTION
95-60 IS AVAILABLE FOR THE PURCHASE AND HOLDING OF THE CERTIFICATE BY SUCH
PURCHASER OR (2) THE PURCHASE WOULD NOT CONSTITUTE A "PROHIBITED TRANSACTION"
WITHIN THE MEANING OF SECTION 406 OR 407 OF ERISA, SECTION 4975 OF THE CODE OR A
MATERIALLY SIMILAR CHARACTERIZATION UNDER ANY SIMILAR LAW. EACH CERTIFICATE
OWNER SHALL BE DEEMED TO REPRESENT THAT IT IS NOT A PERSON SPECIFIED IN CLAUSES
(A), (B), (C), OR (D) ABOVE. TRANSFEREES OF THIS CERTIFICATE TAKING DELIVERY IN
CERTIFICATED FORM SHALL BE REQUIRED EITHER (i) TO DELIVER A LETTER IN THE FORM
OF EXHIBIT G TO THE POOLING AND SERVICING AGREEMENT TO THE EFFECT THAT IT IS NOT
A PERSON SPECIFIED IN CLAUSES (A), (B), (C) OR (D) ABOVE, OR (ii) IN THE EVENT
THE TRANSFEREE IS SUCH AN ENTITY SPECIFIED IN (A), (B), (C) OR (D) ABOVE, SUCH
ENTITY SHALL PROVIDE AN OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO
THE CERTIFICATE REGISTRAR AND THE DEPOSITOR THAT THE PURCHASE OR HOLDING OF THE
CERTIFICATES BY OR ON BEHALF OF A PLAN WILL NOT CONSTITUTE OR RESULT IN A
"PROHIBITED TRANSACTION" WITHIN THE MEANING OF SECTION 406 OR 407 OF ERISA OR
SECTION 4975 OF THE CODE, AND WILL NOT SUBJECT THE MASTER SERVICER, THE SPECIAL
SERVICER, THE DEPOSITOR, THE TRUSTEE, THE CERTIFICATE REGISTRAR, THE EXTENSION
ADVISER OR THE UNDERWRITER TO ANY OBLIGATION OR LIABILITY UNDER ERISA OR SECTION
4975 OF THE CODE.
THIS CERTIFICATE IS ISSUED ON MAY 16, 1996, AND BASED ON ITS ISSUE PRICE OF
91.63282%, INCLUDING ACCRUED INTEREST, AND A STATED REDEMPTION PRICE AT MATURITY
EQUAL TO ITS INITIAL PRINCIPAL BALANCE, IS ISSUED WITH ORIGINAL ISSUE DISCOUNT
("OID") FOR FEDERAL INCOME TAX PURPOSES. ASSUMING THAT THIS CERTIFICATE PAYS IN
ACCORDANCE WITH PROJECTED CASH FLOWS REFLECTING THE PREPAYMENT ASSUMPTION OF 0%
CPR (AS DEFINED IN THE PROSPECTUS SUPPLEMENT DATED MAY 2, 1996 WITH RESPECT TO
THE OFFERING OF THE CLASS A CERTIFICATES, CLASS B CERTIFICATES, CLASS C
CERTIFICATES, CLASS D CERTIFICATES AND CLASS E CERTIFICATES) USED TO PRICE THIS
CERTIFICATE: (I) THE AMOUNT OF OID AS A PERCENTAGE OF THE INITIAL PRINCIPAL
BALANCE OF THIS CERTIFICATE IS APPROXIMATELY 8.36718333%; AND (II) THE ANNUAL
YIELD TO MATURITY OF THIS CERTIFICATE, COMPOUNDED MONTHLY, IS APPROXIMATELY
8.97%. THERE IS NO SHORT FIRST ACCRUAL PERIOD.
<TABLE>
<CAPTION>
<S> <C>
PASS-THROUGH RATE: 7.690% APPROXIMATE AGGREGATE SCHEDULED PRINCIPAL BALANCE OF
THE MORTGAGE LOANS AFTER DEDUCTING PAYMENTS DUE AND
DENOMINATION: [$____________]2 PREPAYMENTS RECEIVED ON OR BEFORE CUT-OFF DATE:
[Set forth on Schedule A]3 $322,639,635
MASTER SERVICER: AMRESCO MANAGEMENT, INC.
DATE OF POOLING AND SERVICING AGREEMENT:
AS OF MAY 1, 1996 SPECIAL SERVICER: AMRESCO MANAGEMENT, INC.
CUT-OFF DATE: MAY 1, 1996, EXCEPT AS TRUSTEE: THE CHASE MANHATTAN BANK, N.A.
DESCRIBED IN THE POOLING AND SERVICING
AGREEMENT REMIC ADMINISTRATOR: NATIONSBANC MORTGAGE CAPITAL
CORPORATION
CLOSING DATE: MAY 16, 1996
CUSIP NO. 63859CAG8
FIRST DISTRIBUTION DATE:
JUNE 20, 1996 CERTIFICATE NO.: E-1
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE
OF THE CLASS E CERTIFICATES
AS OF THE CLOSING DATE: $14,518,783
<FN>
1 If this Certificate represents a Book-Entry Certificate registered in the name
of Cede & Co., it shall have this legend.
2 If this Certificate represents a Definitive Certificate, the Denomination
shall be specified on the face hereof.
3 If this Certificate represents a Book-Entry Certificate, its Denomination
shall be set forth on Schedule A attached hereto.
</FN>
</TABLE>
<PAGE>
CLASS E CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of fixed rate commercial and multifamily mortgage loans (the "Mortgage
Loans"), all payments on or collections in respect of the Mortgage Loans due
after the Cut-Off Date, all REO Properties and revenues received in respect
thereof, the mortgagee's rights under the Insurance Policies, any Assignment of
Leases, and any guaranties, escrow accounts or other collateral as security for
the Mortgage Loans, and such amounts as shall from time to time be held in the
Certificate Account, the Distribution Accounts, and the REO Accounts, formed and
sold by
NATIONSLINK FUNDING CORPORATION
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN NATIONSLINK
FUNDING CORPORATION, THE MASTER SERVICER, THE SPECIAL SERVICER, THE TRUSTEE, THE
REMIC ADMINISTRATOR OR ANY OF THEIR AFFILIATES. NEITHER THIS CERTIFICATE NOR THE
UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE
UNITED STATES.
THIS CERTIFIES THAT -----------------
is the registered owner of the interest evidenced by this Certificate in the
Class E Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of May 1, 1996 (the "Pooling and Servicing
Agreement"), among NationsLink Funding Corporation (hereinafter called the
"Depositor", which term includes any successor entity under the Pooling and
Servicing Agreement), the Trustee, the Special Servicer, the Master Servicer and
the REMIC Administrator. A summary of certain of the pertinent provisions of the
Pooling and Servicing Agreement is set forth hereafter. To the extent not
defined herein, the capitalized terms used herein shall have the meanings
assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate [set forth
on Schedule A attached hereto]4 [specified on the face hereof]5, by the
aggregate initial Certificate Balance of the Class E Certificates. The
Certificates are designated as the NationsLink Funding Corporation, Commercial
Mortgage Pass-Through Certificates, Series 1996-1 and are issued in fourteen
Classes as specifically set forth in the Pooling and Servicing Agreement. The
Certificates will evidence in the aggregate 100% of the beneficial ownership of
the Trust Fund.
This Certificate does not purport to summarize the Pooling and Servicing
Agreement and reference is made to that agreement for information with respect
to the interests, rights, benefits, obligations, proceeds, and duties evidenced
hereby and the rights, duties and obligations of the Trustee. This Certificate
is issued under and is subject to the terms, provisions and conditions of the
Pooling and Servicing Agreement, to which Pooling and Servicing Agreement, as
amended from time to time, the Certificateholder by virtue of the acceptance
hereof assents and by which the Certificateholder is bound. In the case of any
conflict between terms specified in this Certificate and terms specified in the
Pooling and Servicing Agreement, the terms of the Pooling and Servicing
Agreement shall govern.
- ----------
4 If this Certificate represents a Book-Entry Certificate, its Denomination
shall be set forth on Schedule A attached hereto.
5 If this Certificate represents a Definitive Certificate, the Denomination
shall be specified on the face hereof.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the Trustee
shall distribute to the Person in whose name this Certificate is registered as
of the related Record Date, an amount equal to such Person's pro rata share
(based on the Percentage Interest represented by this Certificate) of that
portion of the aggregate amount of principal and interest then distributable, if
any, allocable to the Class of Certificates of the same Class as this
Certificate for such Distribution Date, all as more described in the Pooling and
Servicing Agreement. All sums distributable on this Certificate are payable in
the coin or currency of the United States of America as at the time of payment
is legal tender for the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class E Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount due to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Appraisal Reduction Amounts on the Mortgage
Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit and Appraisal Reduction Amounts on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other things,
certain collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held in the name of the Trustee on behalf of the
holders of Certificates specified in the Pooling and Servicing Agreement and the
Master Servicer (with respect to the Certificate Account) or the Trustee (with
respect to the Distribution Accounts) will be authorized to make withdrawals
therefrom. Amounts on deposit in such accounts may be invested in Eligible
Investments. Interest or other income earned on funds in the Certificate Account
and Distribution Accounts will be paid to the Master Servicer as set forth in
the Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the master
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a Class of
Certificates shall be made on each Distribution Date (other than the final
distribution on any Certificate) to Certificateholders of record on the related
Record Date by check mailed to the address set forth therefor in the Certificate
Register or, provided that such Certificateholder (1) has provided the Trustee
with wire instructions in writing as least five Business Days prior to the
related Record Date and (2) is the Holder of Certificates with an original
Certificate Balance or Notional Amount, as applicable, of at least $5,000,000,
by wire transfer of immediately available funds to the account of such
Certificateholder at a bank or other entity having appropriate facilities
therefor. The final distribution on this Certificate shall be made in like
manner, but only upon presentment and surrender of this Certificate at the
Corporate Trust Office or such other location specified in the notice to
Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of the
failure of Certificateholders to tender their Certificates shall be set aside
and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(h) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Trustee may, directly or through an agent, take appropriate
steps to contact the remaining non-tendering Certificateholders concerning
surrender of their Certificates. The costs and expenses of holding such funds in
trust and of contacting such Certificateholders shall be paid out of such funds.
No interest shall accrue or be payable to any Certificateholder on any amount
held in trust as a result of such Certificateholder's failure to surrender its
Certificate(s) for final payment thereof in accordance with Section 4.01(h) of
the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registerable
in the Certificate Register only upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Trustee or at the
office of its transfer agent, duly endorsed by, or accompanied by an assignment
in the form below or other written instrument of transfer in form satisfactory
to the Certificate Registrar duly executed by the Holder hereof or such Holder's
attorney-in-fact duly authorized in writing, and thereupon one or more new
Certificates of the same Class in authorized Denominations will be issued to the
designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the Class A
Certificates will be issued in book-entry form through the facilities of DTC in
Denominations of not less than $10,000 initial Certificate Balance and in
integral multiples of $1,000 in excess thereof, with one Certificate of such
Class evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class. Subject to the terms of the Pooling and
Servicing Agreement, the Class IO Certificates will be issued in book-entry form
through the facilities of DTC in Denominations of not less than $1,000,000
initial Notional Amount and in integral multiples of $1,000 in excess thereof,
with one Certificate of such Class evidencing an additional amount equal to the
remainder of the initial Notional Amount of such Class. Subject to the terms of
the Pooling and Servicing Agreement, the Class B, Class C, Class D, Class E,
Class F, Class G, Class H and Class UR Certificates will be issued in book-entry
form through the facilities of DTC in Denominations of $250,000 initial
Certificate Balance, and in integral multiples of $1,000 in excess thereof, with
one Certificate of each such Class evidencing an additional amount equal to the
remainder of the initial Certificate Balance of such Class. The Class R and
Class LR Certificates will be issued in fully registered, certificated form, in
Denominations representing Percentage Interests of not less than 20%.
No fee or service charge shall be imposed by the Certificate Registrar for
its services in respect of any registration of transfer or exchange referred to
in Section 5.02 of the Pooling and Servicing Agreement other than for transfers
to Institutional Accredited Investors as provided in Section 5.02(h) thereof. In
connection with any transfer to an Institutional Accredited Investor, the
Transferor shall reimburse the Trust for any costs (including the cost of the
Certificate Registrar's counsel's review of the documents and any legal
opinions, submitted by the transferor or transferee to the Certificate Registrar
as provided in Section 5.02 of the Pooling and Servicing Agreement) incurred by
the Certificate Registrar in connection with such transfer. The Certificate
Registrar may require payment by each transferor of a sum sufficient to cover
any tax, expense or other governmental charge payable in connection with any
such transfer or exchange.
The Depositor, the Trustee, the REMIC Administrator, the Master Servicer,
the Special Servicer, and the Certificate Registrar and any of their agents may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Master
Servicer, the Special Servicer, the REMIC Administrator, the Certificate
Registrar nor any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time by the
Depositor, the Master Servicer, the Special Servicer, the REMIC Administrator
and the Trustee, without the consent of any of the Certificateholders, to cure
any ambiguity, to correct or supplement any provisions herein or therein that
may be inconsistent with any other provisions herein or therein or to correct
any error; to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of the
Upper-Tier REMIC or the Lower-Tier REMIC to avoid or minimize the imposition of
any tax, provided, however, an Opinion of Counsel is obtained to the effect that
such action shall not adversely affect in any material respect the interest of
any Certificateholder and such action is necessary or desirable to avoid such
tax and such action will not result in the withdrawal, downgrade or
qualification of the then-current rating by any Rating Agency, as evidenced by a
letter from such Rating Agency to such effect; to change the timing and/or
nature of deposits into the Certificate Account or Distribution Accounts or to
change the name in which the Certificate Account is maintained, provided,
however, that the P&I Advance Date shall not be later than the related
Distribution Date, an Opinion of Counsel is obtained to the effect that such
action shall not adversely affect in any material respect the interest of any
Certificateholder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating by any Rating Agency, as
evidenced by a letter from such Rating Agency to such effect; to modify,
eliminate or add to the provisions of Section 5.02(d) of the Pooling and
Servicing Agreement or any other provision thereof restricting transfer of the
Residual Certificates by virtue of their being the REMIC "residual interests,"
provided that such change shall not result in the withdrawal, downgrade or
qualification of the then-current rating assigned to any Class of Certificates,
as evidenced by a letter from each Rating Agency to such effect, and such change
shall not, as evidenced by an Opinion of Counsel, cause either the Trust Fund,
the Lower-Tier REMIC, the Upper-Tier REMIC or any of the Certificateholders
(other than the Transferor) to be subject to a federal tax caused by a Transfer
to a Person that is a Disqualified Organization or a Non-U.S. Person; and to
make any other provisions with respect to matters or questions arising under the
Pooling and Servicing Agreement which shall not be materially inconsistent with
the provisions of the Pooling and Servicing Agreement, provided, however, that
such action shall not, as evidenced by an Opinion of Counsel, adversely affect
in any material respect the interest of any Certificateholder not consenting
thereto.
The Pooling and Servicing Agreement may also be amended from time to time
by the Depositor, the Master Servicer, the Special Servicer, the REMIC
Administrator and the Trustee with the consent of the Holders of Certificates
representing not less than 66% of the aggregate Percentage Interests of each
Class of Certificates affected by the amendment for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Pooling and Servicing Agreement or of modifying in any manner the rights of
the Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate
without the consent of such Certificateholder; or
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment,
without the consent of the Holders of all Certificates of such Class
then outstanding.
No amendment shall be made to the Pooling and Servicing Agreement unless
the Trustee shall have received an Opinion of Counsel that such amendment will
not cause either the Upper-Tier REMIC or the Lower-Tier REMIC to fail to qualify
as a REMIC or result in the imposition of a tax on either the Upper-Tier REMIC,
the Lower-Tier REMIC or the Trust Fund.
Any of the Master Servicer or the Depositor will have the option, upon 60
days' prior notice given to the Trustee, each of the other parties to the
Pooling and Servicing Agreement and the Rating Agencies, which notice the
Trustee is required to forward to Certificateholders in the manner set forth in
the Pooling and Servicing Agreement, to purchase all, but not less than all, of
the Mortgage Loans and all property acquired in respect of any Mortgage Loan
remaining in the Trust Fund, and thereby effect termination of the Trust Fund
and early retirement of the then outstanding Certificates, on any Distribution
Date on which the aggregate Stated Principal Balances of the Mortgage Loans and
any REO Loans remaining in the Trust Fund is reduced to less than 5% of the
aggregate Cut-Off Date Principal Balance of all the Mortgage Loans.
The obligations created by the Pooling and Servicing Agreement and the
Trust Fund created thereby (other than the obligation of the Trustee to make
payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Joseph P. Kennedy, the late Ambassador of the United States to
the Court of St. James, living on the date hereof.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Trustee has executed this Certificate on behalf of the
Trust Fund as Trustee under the Pooling and Servicing Agreement and makes no
representation or warranty as to any of the statements contained herein or the
validity or sufficiency of the Certificates or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE CONSTRUED
IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK WITHOUT
REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed under this official seal.
THE CHASE MANHATTAN BANK, N.A., not
in its individual capacity but
solely as Trustee under the Pooling
and Servicing Agreement.
By: ___________________________
AUTHORIZED OFFICER
Dated: May 16, 1996
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS E CERTIFICATES REFERRED TO IN THE WITHIN-MENTIONED
POOLING AND SERVICING AGREEMENT.
THE CHASE MANHATTAN BANK, N.A.,
CERTIFICATE REGISTRAR
By: ___________________________
AUTHORIZED SIGNATORY
<PAGE>
Schedule A
Certificate Balance of
Definitive Certificates
exchanged or transferred
for, or issued in exchange
for or upon transfer of, Remaining Principal
an interest in this Amount of Book- Notation
Date Book-Entry Certificate Entry Certificate Made By
- ---- ---------------------- ------------------- -------
- --------- ---------------------- ------------------- --------
- --------- ---------------------- ------------------- --------
- --------- ---------------------- ------------------- --------
- --------- ---------------------- ------------------- --------
- --------- ---------------------- ------------------- --------
- --------- ---------------------- ------------------- --------
- --------- ---------------------- ------------------- --------
- --------- ---------------------- ------------------- --------
- --------- ---------------------- ------------------- --------
- --------- ---------------------- ------------------- --------
- --------- ---------------------- ------------------- --------
- --------- ---------------------- ------------------- --------
- --------- ---------------------- ------------------- --------
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<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights
of Under Uniform Gifts to
Minors survivorship and not
as tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
- --------------------------------------------------------------------------------
(Please insert Social Security or other identifying number of Assignee)
- --------------------------------------------------------------------------------
(Please print or typewrite name and address of assignee)
- --------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
--------------------------------------------------------
Dated:------------- NOTICE: The signature to this assignment must
correspond with the name as written upon the face of
this Certificate in every particular without alteration
or enlargement or any change whatever.
- --------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. otarized or witnessed signatures are not acceptable.
<PAGE>
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to _________________________________ for the account of
__________________________________ account number _______________ or, if mailed
by check, to _______________________________________. Statements should be
mailed to _______________________________________________________________. This
information is provided by assignee named above, or
______________________________ , as its agent.
<PAGE>
EXHIBIT A-8
NATIONSLINK FUNDING CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 1996-1, CLASS F
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER CLASSES OF
CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING AND SERVICING
AGREEMENT.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS ON THE
CERTIFICATES AND THE PORTION OF COLLATERAL SUPPORT DEFICIT ALLOCABLE TO THIS
CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE
LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN
ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE TRUSTEE. THIS CERTIFICATE
CONSTITUTES A REMIC REGULAR INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED.
[Unless this certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the Certificate
Registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.]1
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER THIS
CERTIFICATE NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, REGISTRATION UNDER THE SECURITIES ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF RULE 501 (a)(1), (2), (3) OR (7) OF REGULATION D
UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM THE REGISTRATION
REQUIREMENTS UNDER THE SECURITIES ACT, OR (D) PURSUANT TO ANOTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT IN
EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY THE TRANSFEROR TO
THE TRUSTEE OF A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE LAST PAGE
OF THIS CERTIFICATE.
THE INITIAL INVESTOR IN THIS CERTIFICATE, AND EACH SUBSEQUENT PURCHASER OF THIS
CERTIFICATE, BY PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO
HAVE AGREED TO COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT. A TRANSFEREE IS ALSO REQUIRED TO DELIVER AN
INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY IN THE FORM OF EXHIBIT C TO THE
POOLING AND SERVICING AGREEMENT IF SUCH TRANSFEREE IS A QUALIFIED INSTITUTIONAL
BUYER OR AN ACCREDITED INSTITUTIONAL INVESTOR, AND MAY ALSO BE REQUIRED TO
DELIVER AN OPINION OF COUNSEL IF SUCH TRANSFEREE IS NOT A QUALIFIED
INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A.
THIS CERTIFICATE MAY NOT BE PURCHASED BY OR TRANSFERRED TO A PERSON WHICH IS
(A)(1) AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY
PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
("ERISA"), OR (2) A PLAN SUBJECT TO SECTION 4975 OF THE CODE, OR A GOVERNMENTAL
PLAN AS DEFINED IN SECTION 3(32) OF ERISA, SUBJECT TO ANY FEDERAL, STATE OR
LOCAL LAW WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING PROVISIONS OF
ERISA OR THE CODE (COLLECTIVELY, A "PLAN"), OR (B) A COLLECTIVE INVESTMENT FUND
IN WHICH SUCH PLANS ARE INVESTED, OR (C) AN INSURANCE COMPANY USING ASSETS OF
SEPARATE ACCOUNTS OR GENERAL ACCOUNTS WHICH INCLUDE ASSETS OF PLANS (OR WHICH
ARE DEEMED PURSUANT TO ERISA OR ANY SIMILAR LAW TO INCLUDE ASSETS OF PLANS), OR
(D) A PERSON OR ENTITY ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF
SUCH PLAN TO ACQUIRE SUCH CERTIFICATE UNLESS IT IS PURCHASING THE CERTIFICATE
WITH THE ASSETS OF AN INSURANCE COMPANY GENERAL ACCOUNT AND (1) THE EXEMPTIVE
RELIEF AFFORDED UNDER SECTION III OF PROHIBITED TRANSACTION CLASS EXEMPTION
95-60 IS AVAILABLE FOR THE PURCHASE AND HOLDING OF THE CERTIFICATE BY SUCH
PURCHASER OR (2) THE PURCHASE WOULD NOT CONSTITUTE A "PROHIBITED TRANSACTION"
WITHIN THE MEANING OF SECTION 406 OR 407 OF ERISA, SECTION 4975 OF THE CODE OR A
MATERIALLY SIMILAR CHARACTERIZATION UNDER ANY SIMILAR LAW. EACH CERTIFICATE
OWNER SHALL BE DEEMED TO REPRESENT THAT IT IS NOT A PERSON SPECIFIED IN CLAUSES
(A), (B), (C), OR (D) ABOVE. TRANSFEREES OF THIS CERTIFICATE TAKING DELIVERY IN
CERTIFICATED FORM SHALL BE REQUIRED EITHER (i) TO DELIVER A LETTER IN THE FORM
OF EXHIBIT G TO THE POOLING AND SERVICING AGREEMENT TO THE EFFECT THAT IT IS NOT
A PERSON SPECIFIED IN CLAUSES (A), (B), (C) OR (D) ABOVE, OR (ii) IN THE EVENT
THE TRANSFEREE IS SUCH AN ENTITY SPECIFIED IN (A), (B), (C) OR (D) ABOVE, SUCH
ENTITY SHALL PROVIDE AN OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO
THE CERTIFICATE REGISTRAR AND THE DEPOSITOR THAT THE PURCHASE OR HOLDING OF THE
CERTIFICATES BY OR ON BEHALF OF A PLAN WILL NOT CONSTITUTE OR RESULT IN A
"PROHIBITED TRANSACTION" WITHIN THE MEANING OF SECTION 406 OR 407 OF ERISA OR
SECTION 4975 OF THE CODE, AND WILL NOT SUBJECT THE MASTER SERVICER, THE SPECIAL
SERVICER, THE DEPOSITOR, THE TRUSTEE, THE CERTIFICATE REGISTRAR, THE EXTENSION
ADVISER OR THE UNDERWRITER TO ANY OBLIGATION OR LIABILITY UNDER ERISA OR SECTION
4975 OF THE CODE.
THIS CERTIFICATE IS ISSUED ON MAY 16, 1996, AND BASED ON ITS ISSUE PRICE OF
76.07576%, INCLUDING ACCRUED INTEREST, AND A STATED REDEMPTION PRICE AT MATURITY
EQUAL TO ITS INITIAL PRINCIPAL BALANCE, IS ISSUED WITH ORIGINAL ISSUE DISCOUNT
("OID") FOR FEDERAL INCOME TAX PURPOSES. ASSUMING THAT THIS CERTIFICATE PAYS IN
ACCORDANCE WITH PROJECTED CASH FLOWS REFLECTING THE PREPAYMENT ASSUMPTION OF 0%
CPR (AS DEFINED IN THE PROSPECTUS SUPPLEMENT DATED MAY 2, 1996 WITH RESPECT TO
THE OFFERING OF THE CLASS A CERTIFICATES, CLASS B CERTIFICATES, CLASS C
CERTIFICATES, CLASS D CERTIFICATES AND CLASS E CERTIFICATES) USED TO PRICE THIS
CERTIFICATE: (I) THE AMOUNT OF OID AS A PERCENTAGE OF THE INITIAL PRINCIPAL
BALANCE OF THIS CERTIFICATE IS APPROXIMATELY 23.92424000%; AND (II) THE ANNUAL
YIELD TO MATURITY OF THIS CERTIFICATE, COMPOUNDED MONTHLY, IS APPROXIMATELY
11.41%. THERE IS NO SHORT FIRST ACCRUAL PERIOD.
<TABLE>
<CAPTION>
<S> <C>
PASS-THROUGH RATE: 7.350% APPROXIMATE AGGREGATE SCHEDULED PRINCIPAL BALANCE
OF THE MORTGAGE LOANS AFTER DEDUCTING PAYMENTS DUE
DENOMINATION: [$____________]2 AND PREPAYMENTS RECEIVED ON OR BEFORE CUT-OFF
[Set forth on Schedule A]3 DATE: $322,639,635
DATE OF POOLING AND SERVICING AGREEMENT: AS MASTER SERVICER: AMRESCO MANAGEMENT, INC.
OF MAY 1, 1996
SPECIAL SERVICER: AMRESCO MANAGEMENT, INC.
CUT-OFF DATE: MAY 1, 1996, EXCEPT AS
DESCRIBED IN THE POOLING AND SERVICING TRUSTEE: THE CHASE MANHATTAN BANK, N.A.
AGREEMENT
REMIC ADMINISTRATOR: NATIONSBANC MORTGAGE CAPITAL
CLOSING DATE: MAY 16, 1996 CORPORATION
FIRST DISTRIBUTION DATE: CUSIP NO. 63859CAH6
JUNE 20, 1996
CERTIFICATE NO.: F-1
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE
OF THE CLASS F CERTIFICATES
AS OF THE CLOSING DATE: $10,485,788
<FN>
1 If this Certificate represents a Book-Entry Certificate registered in the name
of Cede & Co., it shall have this legend.
2 If this Certificate represents a Definitive Certificate, the Denomination
shall be specified on the face hereof.
3 If this Certificate represents a Book-Entry Certificate, its Denomination
shall be set forth on Schedule A attached hereto.
</FN>
</TABLE>
<PAGE>
CLASS F CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of fixed rate commercial and multifamily mortgage loans (the "Mortgage
Loans"), all payments on or collections in respect of the Mortgage Loans due
after the Cut-Off Date, all REO Properties and revenues received in respect
thereof, the mortgagee's rights under the Insurance Policies, any Assignment of
Leases, and any guaranties, escrow accounts or other collateral as security for
the Mortgage Loans, and such amounts as shall from time to time be held in the
Certificate Account, the Distribution Accounts, and the REO Accounts, formed and
sold by
NATIONSLINK FUNDING CORPORATION
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN NATIONSLINK
FUNDING CORPORATION, THE MASTER SERVICER, THE SPECIAL SERVICER, THE TRUSTEE, THE
REMIC ADMINISTRATOR OR ANY OF THEIR AFFILIATES. NEITHER THIS CERTIFICATE NOR THE
UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE
UNITED STATES.
THIS CERTIFIES THAT -----------
is the registered owner of the interest evidenced by this Certificate in the
Class F Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of May 1, 1996 (the "Pooling and Servicing
Agreement"), among NationsLink Funding Corporation (hereinafter called the
"Depositor", which term includes any successor entity under the Pooling and
Servicing Agreement), the Trustee, the Special Servicer, the Master Servicer and
the REMIC Administrator. A summary of certain of the pertinent provisions of the
Pooling and Servicing Agreement is set forth hereafter. To the extent not
defined herein, the capitalized terms used herein shall have the meanings
assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate [set forth
on Schedule A attached hereto]4 [specified on the face hereof]5, by the
aggregate initial Certificate Balance of the Class F Certificates. The
Certificates are designated as the NationsLink Funding Corporation, Commercial
Mortgage Pass-Through Certificates, Series 1996-1 and are issued in fourteen
Classes as specifically set forth in the Pooling and Servicing Agreement. The
Certificates will evidence in the aggregate 100% of the beneficial ownership of
the Trust Fund.
This Certificate does not purport to summarize the Pooling and Servicing
Agreement and reference is made to that agreement for information with respect
to the interests, rights, benefits, obligations, proceeds, and duties evidenced
hereby and the rights, duties and obligations of the Trustee. This Certificate
is issued under and is subject to the terms, provisions and conditions of the
Pooling and Servicing Agreement, to which Pooling and Servicing Agreement, as
amended from time to time, the Certificateholder by virtue of the acceptance
hereof assents and by which the Certificateholder is bound. In the case of any
conflict between terms specified in this Certificate and terms specified in the
Pooling and Servicing Agreement, the terms of the Pooling and Servicing
Agreement shall govern.
- ----------
4 If this Certificate represents a Book-Entry Certificate, its Denomination
shall be set forth on Schedule A attached hereto.
5 If this Certificate represents a Definitive Certificate, the Denomination
shall be specified on the face hereof.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the Trustee
shall distribute to the Person in whose name this Certificate is registered as
of the related Record Date, an amount equal to such Person's pro rata share
(based on the Percentage Interest represented by this Certificate) of that
portion of the aggregate amount of principal and interest then distributable, if
any, allocable to the Class of Certificates of the same Class as this
Certificate for such Distribution Date, all as more described in the Pooling and
Servicing Agreement. All sums distributable on this Certificate are payable in
the coin or currency of the United States of America as at the time of payment
is legal tender for the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class F Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount due to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Appraisal Reduction Amounts on the Mortgage
Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit and Appraisal Reduction Amounts on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other things,
certain collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held in the name of the Trustee on behalf of the
holders of Certificates specified in the Pooling and Servicing Agreement and the
Master Servicer (with respect to the Certificate Account) or the Trustee (with
respect to the Distribution Accounts) will be authorized to make withdrawals
therefrom. Amounts on deposit in such accounts may be invested in Eligible
Investments. Interest or other income earned on funds in the Certificate Account
and Distribution Accounts will be paid to the Master Servicer as set forth in
the Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the master
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a Class of
Certificates shall be made on each Distribution Date (other than the final
distribution on any Certificate) to Certificateholders of record on the related
Record Date by check mailed to the address set forth therefor in the Certificate
Register or, provided that such Certificateholder (1) has provided the Trustee
with wire instructions in writing as least five Business Days prior to the
related Record Date and (2) is the Holder of Certificates with an original
Certificate Balance or Notional Amount, as applicable, of at least $5,000,000,
by wire transfer of immediately available funds to the account of such
Certificateholder at a bank or other entity having appropriate facilities
therefor. The final distribution on this Certificate shall be made in like
manner, but only upon presentment and surrender of this Certificate at the
Corporate Trust Office or such other location specified in the notice to
Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of the
failure of Certificateholders to tender their Certificates shall be set aside
and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(h) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Trustee may, directly or through an agent, take appropriate
steps to contact the remaining non-tendering Certificateholders concerning
surrender of their Certificates. The costs and expenses of holding such funds in
trust and of contacting such Certificateholders shall be paid out of such funds.
No interest shall accrue or be payable to any Certificateholder on any amount
held in trust as a result of such Certificateholder's failure to surrender its
Certificate(s) for final payment thereof in accordance with Section 4.01(h) of
the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registerable
in the Certificate Register only upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Trustee or at the
office of its transfer agent, duly endorsed by, or accompanied by an assignment
in the form below or other written instrument of transfer in form satisfactory
to the Certificate Registrar duly executed by the Holder hereof or such Holder's
attorney-in-fact duly authorized in writing, and thereupon one or more new
Certificates of the same Class in authorized Denominations will be issued to the
designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the Class A
Certificates will be issued in book-entry form through the facilities of DTC in
Denominations of not less than $10,000 initial Certificate Balance and in
integral multiples of $1,000 in excess thereof, with one Certificate of such
Class evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class. Subject to the terms of the Pooling and
Servicing Agreement, the Class IO Certificates will be issued in book-entry form
through the facilities of DTC in Denominations of not less than $1,000,000
initial Notional Amount and in integral multiples of $1,000 in excess thereof,
with one Certificate of such Class evidencing an additional amount equal to the
remainder of the initial Notional Amount of such Class. Subject to the terms of
the Pooling and Servicing Agreement, the Class B, Class C, Class D, Class E,
Class F, Class G, Class H and Class UR Certificates will be issued in book-entry
form through the facilities of DTC in Denominations of $250,000 initial
Certificate Balance, and in integral multiples of $1,000 in excess thereof, with
one Certificate of each such Class evidencing an additional amount equal to the
remainder of the initial Certificate Balance of such Class. The Class R and
Class LR Certificates will be issued in fully registered, certificated form, in
Denominations representing Percentage Interests of not less than 20%.
No fee or service charge shall be imposed by the Certificate Registrar for
its services in respect of any registration of transfer or exchange referred to
in Section 5.02 of the Pooling and Servicing Agreement other than for transfers
to Institutional Accredited Investors as provided in Section 5.02(h) thereof. In
connection with any transfer to an Institutional Accredited Investor, the
Transferor shall reimburse the Trust for any costs (including the cost of the
Certificate Registrar's counsel's review of the documents and any legal
opinions, submitted by the transferor or transferee to the Certificate Registrar
as provided in Section 5.02 of the Pooling and Servicing Agreement) incurred by
the Certificate Registrar in connection with such transfer. The Certificate
Registrar may require payment by each transferor of a sum sufficient to cover
any tax, expense or other governmental charge payable in connection with any
such transfer or exchange.
The Depositor, the Trustee, the REMIC Administrator, the Master Servicer,
the Special Servicer, and the Certificate Registrar and any of their agents may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Master
Servicer, the Special Servicer, the REMIC Administrator, the Certificate
Registrar nor any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time by the
Depositor, the Master Servicer, the Special Servicer, the REMIC Administrator
and the Trustee, without the consent of any of the Certificateholders, to cure
any ambiguity, to correct or supplement any provisions herein or therein that
may be inconsistent with any other provisions herein or therein or to correct
any error; to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of the
Upper-Tier REMIC or the Lower-Tier REMIC to avoid or minimize the imposition of
any tax, provided, however, an Opinion of Counsel is obtained to the effect that
such action shall not adversely affect in any material respect the interest of
any Certificateholder and such action is necessary or desirable to avoid such
tax and such action will not result in the withdrawal, downgrade or
qualification of the then-current rating by any Rating Agency, as evidenced by a
letter from such Rating Agency to such effect; to change the timing and/or
nature of deposits into the Certificate Account or Distribution Accounts or to
change the name in which the Certificate Account is maintained, provided,
however, that the P&I Advance Date shall not be later than the related
Distribution Date, an Opinion of Counsel is obtained to the effect that such
action shall not adversely affect in any material respect the interest of any
Certificateholder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating by any Rating Agency, as
evidenced by a letter from such Rating Agency to such effect; to modify,
eliminate or add to the provisions of Section 5.02(d) of the Pooling and
Servicing Agreement or any other provision thereof restricting transfer of the
Residual Certificates by virtue of their being the REMIC "residual interests,"
provided that such change shall not result in the withdrawal, downgrade or
qualification of the then-current rating assigned to any Class of Certificates,
as evidenced by a letter from each Rating Agency to such effect, and such change
shall not, as evidenced by an Opinion of Counsel, cause either the Trust Fund,
the Lower-Tier REMIC, the Upper-Tier REMIC or any of the Certificateholders
(other than the Transferor) to be subject to a federal tax caused by a Transfer
to a Person that is a Disqualified Organization or a Non-U.S. Person; and to
make any other provisions with respect to matters or questions arising under the
Pooling and Servicing Agreement which shall not be materially inconsistent with
the provisions of the Pooling and Servicing Agreement, provided, however, that
such action shall not, as evidenced by an Opinion of Counsel, adversely affect
in any material respect the interest of any Certificateholder not consenting
thereto.
The Pooling and Servicing Agreement may also be amended from time to time
by the Depositor, the Master Servicer, the Special Servicer, the REMIC
Administrator and the Trustee with the consent of the Holders of Certificates
representing not less than 66% of the aggregate Percentage Interests of each
Class of Certificates affected by the amendment for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Pooling and Servicing Agreement or of modifying in any manner the rights of
the Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate
without the consent of such Certificateholder; or
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment,
without the consent of the Holders of all Certificates of such Class
then outstanding.
No amendment shall be made to the Pooling and Servicing Agreement unless
the Trustee shall have received an Opinion of Counsel that such amendment will
not cause either the Upper-Tier REMIC or the Lower-Tier REMIC to fail to qualify
as a REMIC or result in the imposition of a tax on either the Upper-Tier REMIC,
the Lower-Tier REMIC or the Trust Fund.
Any of the Master Servicer or the Depositor will have the option, upon 60
days' prior notice given to the Trustee, each of the other parties to the
Pooling and Servicing Agreement and the Rating Agencies, which notice the
Trustee is required to forward to Certificateholders in the manner set forth in
the Pooling and Servicing Agreement, to purchase all, but not less than all, of
the Mortgage Loans and all property acquired in respect of any Mortgage Loan
remaining in the Trust Fund, and thereby effect termination of the Trust Fund
and early retirement of the then outstanding Certificates, on any Distribution
Date on which the aggregate Stated Principal Balances of the Mortgage Loans and
any REO Loans remaining in the Trust Fund is reduced to less than 5% of the
aggregate Cut-Off Date Principal Balance of all the Mortgage Loans.
The obligations created by the Pooling and Servicing Agreement and the
Trust Fund created thereby (other than the obligation of the Trustee to make
payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Joseph P. Kennedy, the late Ambassador of the United States to
the Court of St. James, living on the date hereof.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Trustee has executed this Certificate on behalf of the
Trust Fund as Trustee under the Pooling and Servicing Agreement and makes no
representation or warranty as to any of the statements contained herein or the
validity or sufficiency of the Certificates or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE CONSTRUED
IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK WITHOUT
REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed under this official seal.
THE CHASE MANHATTAN BANK, N.A., not
in its individual capacity but
solely as Trustee under the Pooling
and Servicing Agreement.
By: ___________________________
AUTHORIZED OFFICER
Dated: May 16, 1996
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS F CERTIFICATES REFERRED TO IN THE WITHIN-MENTIONED
POOLING AND SERVICING AGREEMENT.
THE CHASE MANHATTAN BANK, N.A.,
CERTIFICATE REGISTRAR
By: ________________________
AUTHORIZED SIGNATORY
<PAGE>
Schedule A
Certificate Balance of
Definitive Certificates
exchanged or transferred
for, or issued in exchange
for or upon transfer of, Remaining Principal
an interest in this Amount of Book- Notation
Date Book-Entry Certificate Entry Certificate Made By
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<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights
of Under Uniform Gifts to
Minors survivorship and not
as tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
- --------------------------------------------------------------------------------
(Please insert Social Security or other identifying number of Assignee)
- --------------------------------------------------------------------------------
(Please print or typewrite name and address of assignee)
- --------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
--------------------------------------------------------
Dated:------------ NOTICE: The signature to this assignment must
correspond with the name as written upon the face of
this Certificate in every particular without alteration
or enlargement or any change whatever.
- --------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
<PAGE>
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to _________________________________ for the account of
__________________________________ account number _______________ or, if mailed
by check, to _______________________________________. Statements should be
mailed to _______________________________________________________________. This
information is provided by assignee named above, or
______________________________ , as its agent.
<PAGE>
EXHIBIT A-9
NATIONSLINK FUNDING CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 1996-1, CLASS G
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER CLASSES OF
CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING AND SERVICING
AGREEMENT.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS ON THE
CERTIFICATES AND THE PORTION OF COLLATERAL SUPPORT DEFICIT ALLOCABLE TO THIS
CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE
LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN
ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE TRUSTEE. THIS CERTIFICATE
CONSTITUTES A REMIC REGULAR INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED.
[Unless this certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the Certificate
Registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.]1
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER THIS
CERTIFICATE NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, REGISTRATION UNDER THE SECURITIES ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF RULE 501 (a)(1), (2), (3) OR (7) OF REGULATION D
UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM THE REGISTRATION
REQUIREMENTS UNDER THE SECURITIES ACT, OR (D) PURSUANT TO ANOTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT IN
EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY THE TRANSFEROR TO
THE TRUSTEE OF A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE LAST PAGE
OF THIS CERTIFICATE.
THE INITIAL INVESTOR IN THIS CERTIFICATE, AND EACH SUBSEQUENT PURCHASER OF THIS
CERTIFICATE, BY PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO
HAVE AGREED TO COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT. A TRANSFEREE IS ALSO REQUIRED TO DELIVER AN
INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY IN THE FORM OF EXHIBIT C TO THE
POOLING AND SERVICING AGREEMENT IF SUCH TRANSFEREE IS A QUALIFIED INSTITUTIONAL
BUYER OR AN ACCREDITED INSTITUTIONAL INVESTOR, AND MAY ALSO BE REQUIRED TO
DELIVER AN OPINION OF COUNSEL IF SUCH TRANSFEREE IS NOT A QUALIFIED
INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A.
THIS CERTIFICATE MAY NOT BE PURCHASED BY OR TRANSFERRED TO A PERSON WHICH IS
(A)(1) AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY
PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
("ERISA"), OR (2) A PLAN SUBJECT TO SECTION 4975 OF THE CODE, OR A GOVERNMENTAL
PLAN AS DEFINED IN SECTION 3(32) OF ERISA, SUBJECT TO ANY FEDERAL, STATE OR
LOCAL LAW WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING PROVISIONS OF
ERISA OR THE CODE (COLLECTIVELY, A "PLAN"), OR (B) A COLLECTIVE INVESTMENT FUND
IN WHICH SUCH PLANS ARE INVESTED, OR (C) AN INSURANCE COMPANY USING ASSETS OF
SEPARATE ACCOUNTS OR GENERAL ACCOUNTS WHICH INCLUDE ASSETS OF PLANS (OR WHICH
ARE DEEMED PURSUANT TO ERISA OR ANY SIMILAR LAW TO INCLUDE ASSETS OF PLANS), OR
(D) A PERSON OR ENTITY ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF
SUCH PLAN TO ACQUIRE SUCH CERTIFICATE UNLESS IT IS PURCHASING THE CERTIFICATE
WITH THE ASSETS OF AN INSURANCE COMPANY GENERAL ACCOUNT AND (1) THE EXEMPTIVE
RELIEF AFFORDED UNDER SECTION III OF PROHIBITED TRANSACTION CLASS EXEMPTION
95-60 IS AVAILABLE FOR THE PURCHASE AND HOLDING OF THE CERTIFICATE BY SUCH
PURCHASER OR (2) THE PURCHASE WOULD NOT CONSTITUTE A "PROHIBITED TRANSACTION"
WITHIN THE MEANING OF SECTION 406 OR 407 OF ERISA, SECTION 4975 OF THE CODE OR A
MATERIALLY SIMILAR CHARACTERIZATION UNDER ANY SIMILAR LAW. EACH CERTIFICATE
OWNER SHALL BE DEEMED TO REPRESENT THAT IT IS NOT A PERSON SPECIFIED IN CLAUSES
(A), (B), (C), OR (D) ABOVE. TRANSFEREES OF THIS CERTIFICATE TAKING DELIVERY IN
CERTIFICATED FORM SHALL BE REQUIRED EITHER (i) TO DELIVER A LETTER IN THE FORM
OF EXHIBIT G TO THE POOLING AND SERVICING AGREEMENT TO THE EFFECT THAT IT IS NOT
A PERSON SPECIFIED IN CLAUSES (A), (B), (C) OR (D) ABOVE, OR (ii) IN THE EVENT
THE TRANSFEREE IS SUCH AN ENTITY SPECIFIED IN (A), (B), (C) OR (D) ABOVE, SUCH
ENTITY SHALL PROVIDE AN OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO
THE CERTIFICATE REGISTRAR AND THE DEPOSITOR THAT THE PURCHASE OR HOLDING OF THE
CERTIFICATES BY OR ON BEHALF OF A PLAN WILL NOT CONSTITUTE OR RESULT IN A
"PROHIBITED TRANSACTION" WITHIN THE MEANING OF SECTION 406 OR 407 OF ERISA OR
SECTION 4975 OF THE CODE, AND WILL NOT SUBJECT THE MASTER SERVICER, THE SPECIAL
SERVICER, THE DEPOSITOR, THE TRUSTEE, THE CERTIFICATE REGISTRAR, THE EXTENSION
ADVISER OR THE UNDERWRITER TO ANY OBLIGATION OR LIABILITY UNDER ERISA OR SECTION
4975 OF THE CODE.
THIS CERTIFICATE IS ISSUED ON MAY 16, 1996, AND BASED ON ITS ISSUE PRICE OF
71.25158%, INCLUDING ACCRUED INTEREST, AND A STATED REDEMPTION PRICE AT MATURITY
EQUAL TO ITS INITIAL PRINCIPAL BALANCE, IS ISSUED WITH ORIGINAL ISSUE DISCOUNT
("OID") FOR FEDERAL INCOME TAX PURPOSES. ASSUMING THAT THIS CERTIFICATE PAYS IN
ACCORDANCE WITH PROJECTED CASH FLOWS REFLECTING THE PREPAYMENT ASSUMPTION OF 0%
CPR (AS DEFINED IN THE PROSPECTUS SUPPLEMENT DATED MAY 2, 1996 WITH RESPECT TO
THE OFFERING OF THE CLASS A-1 CERTIFICATES, CLASS A-2 CERTIFICATES, CLASS A-3
CERTIFICATES, CLASS B CERTIFICATES, CLASS C CERTIFICATES, CLASS D CERTIFICATES
AND CLASS E CERTIFICATES) USED TO PRICE THIS CERTIFICATE: (I) THE AMOUNT OF OID
AS A PERCENTAGE OF THE INITIAL PRINCIPAL BALANCE OF THIS CERTIFICATE IS
APPROXIMATELY 28.74842000%; AND (II) THE ANNUAL YIELD TO MATURITY OF THIS
CERTIFICATE, COMPOUNDED MONTHLY, IS APPROXIMATELY 12.41%. THERE IS NO SHORT
FIRST ACCRUAL PERIOD.
<TABLE>
<CAPTION>
<S> <C>
PASS-THROUGH RATE: 7.350% APPROXIMATE AGGREGATE SCHEDULED PRINCIPAL BALANCE OF
THE MORTGAGE LOANS AFTER DEDUCTING PAYMENTS DUE AND
DENOMINATION: [$____________]2 PREPAYMENTS RECEIVED ON OR BEFORE CUT-OFF DATE:
[Set forth on Schedule A]3 $322,639,635
MASTER SERVICER: AMRESCO MANAGEMENT, INC.
DATE OF POOLING AND SERVICING AGREEMENT:
AS OF MAY 1, 1996 SPECIAL SERVICER: AMRESCO MANAGEMENT, INC.
CUT-OFF DATE: MAY 1, 1996, EXCEPT AS TRUSTEE: THE CHASE MANHATTAN BANK, N.A.
DESCRIBED IN THE POOLING AND SERVICING
AGREEMENT REMIC ADMINISTRATOR: NATIONSBANC MORTGAGE CAPITAL
CORPORATION
CLOSING DATE: MAY 16, 1996
CUSIP NO. 63859CAJ2
FIRST DISTRIBUTION DATE:
JUNE 20, 1996 CERTIFICATE NO.: G-1
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE
OF THE CLASS G CERTIFICATES
AS OF THE CLOSING DATE: $5,646,193
<FN>
1 If this Certificate represents a Book-Entry Certificate registered in the name
of Cede & Co., it shall have this legend.
2 If this Certificate represents a Definitive Certificate, the Denomination
shall be specified on the face hereof.
3 If this Certificate represents a Book-Entry Certificate, its Denomination
shall be set forth on Schedule A attached hereto.
</FN>
</TABLE>
<PAGE>
CLASS G CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of fixed rate commercial and multifamily mortgage loans (the "Mortgage
Loans"), all payments on or collections in respect of the Mortgage Loans due
after the Cut-Off Date, all REO Properties and revenues received in respect
thereof, the mortgagee's rights under the Insurance Policies, any Assignment of
Leases, and any guaranties, escrow accounts or other collateral as security for
the Mortgage Loans, and such amounts as shall from time to time be held in the
Certificate Account, the Distribution Accounts, and the REO Accounts, formed and
sold by
NATIONSLINK FUNDING CORPORATION
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN NATIONSLINK
FUNDING CORPORATION, THE MASTER SERVICER, THE SPECIAL SERVICER, THE TRUSTEE, THE
REMIC ADMINISTRATOR OR ANY OF THEIR AFFILIATES. NEITHER THIS CERTIFICATE NOR THE
UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE
UNITED STATES.
THIS CERTIFIES THAT --------------
is the registered owner of the interest evidenced by this Certificate in the
Class G Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of May 1, 1996 (the "Pooling and Servicing
Agreement"), among NationsLink Funding Corporation (hereinafter called the
"Depositor", which term includes any successor entity under the Pooling and
Servicing Agreement), the Trustee, the Special Servicer, the Master Servicer and
the REMIC Administrator. A summary of certain of the pertinent provisions of the
Pooling and Servicing Agreement is set forth hereafter. To the extent not
defined herein, the capitalized terms used herein shall have the meanings
assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate [set forth
on Schedule A attached hereto]4 [specified on the face hereof]5, by the
aggregate initial Certificate Balance of the Class G Certificates. The
Certificates are designated as the NationsLink Funding Corporation, Commercial
Mortgage Pass-Through Certificates, Series 1996-1 and are issued in fourteen
Classes as specifically set forth in the Pooling and Servicing Agreement. The
Certificates will evidence in the aggregate 100% of the beneficial ownership of
the Trust Fund.
This Certificate does not purport to summarize the Pooling and Servicing
Agreement and reference is made to that agreement for information with respect
to the interests, rights, benefits, obligations, proceeds, and duties evidenced
hereby and the rights, duties and obligations of the Trustee. This Certificate
is issued under and is subject to the terms, provisions and conditions of the
Pooling and Servicing Agreement, to which Pooling and Servicing Agreement, as
amended from time to time, the Certificateholder by virtue of the acceptance
hereof assents and by which the Certificateholder is bound. In the case of any
conflict between terms specified in this Certificate and terms specified in the
Pooling and Servicing Agreement, the terms of the Pooling and Servicing
Agreement shall govern.
- ----------
4 If this Certificate represents a Book-Entry Certificate, its Denomination
shall be set forth on Schedule A attached hereto.
5 If this Certificate represents a Definitive Certificate, the Denomination
shall be specified on the face hereof.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the Trustee
shall distribute to the Person in whose name this Certificate is registered as
of the related Record Date, an amount equal to such Person's pro rata share
(based on the Percentage Interest represented by this Certificate) of that
portion of the aggregate amount of principal and interest then distributable, if
any, allocable to the Class of Certificates of the same Class as this
Certificate for such Distribution Date, all as more described in the Pooling and
Servicing Agreement. All sums distributable on this Certificate are payable in
the coin or currency of the United States of America as at the time of payment
is legal tender for the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class G Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount due to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Appraisal Reduction Amounts on the Mortgage
Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit and Appraisal Reduction Amounts on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other things,
certain collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held in the name of the Trustee on behalf of the
holders of Certificates specified in the Pooling and Servicing Agreement and the
Master Servicer (with respect to the Certificate Account) or the Trustee (with
respect to the Distribution Accounts) will be authorized to make withdrawals
therefrom. Amounts on deposit in such accounts may be invested in Eligible
Investments. Interest or other income earned on funds in the Certificate Account
and Distribution Accounts will be paid to the Master Servicer as set forth in
the Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the master
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a Class of
Certificates shall be made on each Distribution Date (other than the final
distribution on any Certificate) to Certificateholders of record on the related
Record Date by check mailed to the address set forth therefor in the Certificate
Register or, provided that such Certificateholder (1) has provided the Trustee
with wire instructions in writing as least five Business Days prior to the
related Record Date and (2) is the Holder of Certificates with an original
Certificate Balance or Notional Amount, as applicable, of at least $5,000,000,
by wire transfer of immediately available funds to the account of such
Certificateholder at a bank or other entity having appropriate facilities
therefor. The final distribution on this Certificate shall be made in like
manner, but only upon presentment and surrender of this Certificate at the
Corporate Trust Office or such other location specified in the notice to
Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of the
failure of Certificateholders to tender their Certificates shall be set aside
and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(h) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Trustee may, directly or through an agent, take appropriate
steps to contact the remaining non-tendering Certificateholders concerning
surrender of their Certificates. The costs and expenses of holding such funds in
trust and of contacting such Certificateholders shall be paid out of such funds.
No interest shall accrue or be payable to any Certificateholder on any amount
held in trust as a result of such Certificateholder's failure to surrender its
Certificate(s) for final payment thereof in accordance with Section 4.01(h) of
the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registerable
in the Certificate Register only upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Trustee or at the
office of its transfer agent, duly endorsed by, or accompanied by an assignment
in the form below or other written instrument of transfer in form satisfactory
to the Certificate Registrar duly executed by the Holder hereof or such Holder's
attorney-in-fact duly authorized in writing, and thereupon one or more new
Certificates of the same Class in authorized Denominations will be issued to the
designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the Class A
Certificates will be issued in book-entry form through the facilities of DTC in
Denominations of not less than $10,000 initial Certificate Balance and in
integral multiples of $1,000 in excess thereof, with one Certificate of such
Class evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class. Subject to the terms of the Pooling and
Servicing Agreement, the Class IO Certificates will be issued in book-entry form
through the facilities of DTC in Denominations of not less than $1,000,000
initial Notional Amount and in integral multiples of $1,000 in excess thereof,
with one Certificate of such Class evidencing an additional amount equal to the
remainder of the initial Notional Amount of such Class. Subject to the terms of
the Pooling and Servicing Agreement, the Class B, Class C, Class D, Class E,
Class F, Class G, Class H and Class UR Certificates will be issued in book-entry
form through the facilities of DTC in Denominations of $250,000 initial
Certificate Balance, and in integral multiples of $1,000 in excess thereof, with
one Certificate of each such Class evidencing an additional amount equal to the
remainder of the initial Certificate Balance of such Class. The Class R and
Class LR Certificates will be issued in fully registered, certificated form, in
Denominations representing Percentage Interests of not less than 20%.
No fee or service charge shall be imposed by the Certificate Registrar for
its services in respect of any registration of transfer or exchange referred to
in Section 5.02 of the Pooling and Servicing Agreement other than for transfers
to Institutional Accredited Investors as provided in Section 5.02(h) thereof. In
connection with any transfer to an Institutional Accredited Investor, the
Transferor shall reimburse the Trust for any costs (including the cost of the
Certificate Registrar's counsel's review of the documents and any legal
opinions, submitted by the transferor or transferee to the Certificate Registrar
as provided in Section 5.02 of the Pooling and Servicing Agreement) incurred by
the Certificate Registrar in connection with such transfer. The Certificate
Registrar may require payment by each transferor of a sum sufficient to cover
any tax, expense or other governmental charge payable in connection with any
such transfer or exchange.
The Depositor, the Trustee, the REMIC Administrator, the Master Servicer,
the Special Servicer, and the Certificate Registrar and any of their agents may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Master
Servicer, the Special Servicer, the REMIC Administrator, the Certificate
Registrar nor any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time by the
Depositor, the Master Servicer, the Special Servicer, the REMIC Administrator
and the Trustee, without the consent of any of the Certificateholders, to cure
any ambiguity, to correct or supplement any provisions herein or therein that
may be inconsistent with any other provisions herein or therein or to correct
any error; to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of the
Upper-Tier REMIC or the Lower-Tier REMIC to avoid or minimize the imposition of
any tax, provided, however, an Opinion of Counsel is obtained to the effect that
such action shall not adversely affect in any material respect the interest of
any Certificateholder and such action is necessary or desirable to avoid such
tax and such action will not result in the withdrawal, downgrade or
qualification of the then-current rating by any Rating Agency, as evidenced by a
letter from such Rating Agency to such effect; to change the timing and/or
nature of deposits into the Certificate Account or Distribution Accounts or to
change the name in which the Certificate Account is maintained, provided,
however, that the P&I Advance Date shall not be later than the related
Distribution Date, an Opinion of Counsel is obtained to the effect that such
action shall not adversely affect in any material respect the interest of any
Certificateholder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating by any Rating Agency, as
evidenced by a letter from such Rating Agency to such effect; to modify,
eliminate or add to the provisions of Section 5.02(d) of the Pooling and
Servicing Agreement or any other provision thereof restricting transfer of the
Residual Certificates by virtue of their being the REMIC "residual interests,"
provided that such change shall not result in the withdrawal, downgrade or
qualification of the then-current rating assigned to any Class of Certificates,
as evidenced by a letter from each Rating Agency to such effect, and such change
shall not, as evidenced by an Opinion of Counsel, cause either the Trust Fund,
the Lower-Tier REMIC, the Upper-Tier REMIC or any of the Certificateholders
(other than the Transferor) to be subject to a federal tax caused by a Transfer
to a Person that is a Disqualified Organization or a Non-U.S. Person; and to
make any other provisions with respect to matters or questions arising under the
Pooling and Servicing Agreement which shall not be materially inconsistent with
the provisions of the Pooling and Servicing Agreement, provided, however, that
such action shall not, as evidenced by an Opinion of Counsel, adversely affect
in any material respect the interest of any Certificateholder not consenting
thereto.
The Pooling and Servicing Agreement may also be amended from time to time
by the Depositor, the Master Servicer, the Special Servicer, the REMIC
Administrator and the Trustee with the consent of the Holders of Certificates
representing not less than 66% of the aggregate Percentage Interests of each
Class of Certificates affected by the amendment for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Pooling and Servicing Agreement or of modifying in any manner the rights of
the Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate
without the consent of such Certificateholder; or
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment,
without the consent of the Holders of all Certificates of such Class
then outstanding.
No amendment shall be made to the Pooling and Servicing Agreement unless
the Trustee shall have received an Opinion of Counsel that such amendment will
not cause either the Upper-Tier REMIC or the Lower-Tier REMIC to fail to qualify
as a REMIC or result in the imposition of a tax on either the Upper-Tier REMIC,
the Lower-Tier REMIC or the Trust Fund.
Any of the Master Servicer or the Depositor will have the option, upon 60
days' prior notice given to the Trustee, each of the other parties to the
Pooling and Servicing Agreement and the Rating Agencies, which notice the
Trustee is required to forward to Certificateholders in the manner set forth in
the Pooling and Servicing Agreement, to purchase all, but not less than all, of
the Mortgage Loans and all property acquired in respect of any Mortgage Loan
remaining in the Trust Fund, and thereby effect termination of the Trust Fund
and early retirement of the then outstanding Certificates, on any Distribution
Date on which the aggregate Stated Principal Balances of the Mortgage Loans and
any REO Loans remaining in the Trust Fund is reduced to less than 5% of the
aggregate Cut-Off Date Principal Balance of all the Mortgage Loans.
The obligations created by the Pooling and Servicing Agreement and the
Trust Fund created thereby (other than the obligation of the Trustee to make
payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Joseph P. Kennedy, the late Ambassador of the United States to
the Court of St. James, living on the date hereof.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Trustee has executed this Certificate on behalf of the
Trust Fund as Trustee under the Pooling and Servicing Agreement and makes no
representation or warranty as to any of the statements contained herein or the
validity or sufficiency of the Certificates or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE CONSTRUED
IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK WITHOUT
REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed under this official seal.
THE CHASE MANHATTAN BANK, N.A., not
in its individual capacity but
solely as Trustee under the Pooling
and Servicing Agreement.
By: ___________________________
AUTHORIZED OFFICER
Dated: May 16, 1996
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS G CERTIFICATES REFERRED TO IN THE WITHIN-MENTIONED
POOLING AND SERVICING AGREEMENT.
THE CHASE MANHATTAN BANK, N.A.,
CERTIFICATE REGISTRAR
By: ___________________________
AUTHORIZED SIGNATORY
<PAGE>
Schedule A
Certificate Balance of
Definitive Certificates
exchanged or transferred
for, or issued in exchange
for or upon transfer of, Remaining Principal
an interest in this Amount of Book- Notation
Date Book-Entry Certificate Entry Certificate Made By
- ---- ---------------------- ------------------- -------
- --------- ---------------------- ------------------- --------
- --------- ---------------------- ------------------- --------
- --------- ---------------------- ------------------- --------
- --------- ---------------------- ------------------- --------
- --------- ---------------------- ------------------- --------
- --------- ---------------------- ------------------- --------
- --------- ---------------------- ------------------- --------
- --------- ---------------------- ------------------- --------
- --------- ---------------------- ------------------- --------
- --------- ---------------------- ------------------- --------
- --------- ---------------------- ------------------- --------
- --------- ---------------------- ------------------- --------
- --------- ---------------------- ------------------- --------
- --------- ---------------------- ------------------- --------
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights
of Under Uniform Gifts to
Minors survivorship and not
as tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
- --------------------------------------------------------------------------------
(Please insert Social Security or other identifying number of Assignee)
- --------------------------------------------------------------------------------
(Please print or typewrite name and address of assignee)
- --------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
--------------------------------------------------------
Dated:---------- NOTICE: The signature to this assignment must
correspond with the name as written upon the face of
this Certificate in every particular without alteration
or enlargement or any change whatever.
- --------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
<PAGE>
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to _________________________________ for the account of
__________________________________ account number _______________ or, if mailed
by check, to _______________________________________. Statements should be
mailed to _______________________________________________________________. This
information is provided by assignee named above, or
______________________________ , as its agent.
<PAGE>
EXHIBIT A-10
NATIONSLINK FUNDING CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 1996-1, CLASS H
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER CLASSES OF
CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING AND SERVICING
AGREEMENT.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS ON THE
CERTIFICATES AND THE PORTION OF COLLATERAL SUPPORT DEFICIT ALLOCABLE TO THIS
CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE
LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN
ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE TRUSTEE. THIS CERTIFICATE
CONSTITUTES A REMIC REGULAR INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED.
[Unless this certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the Certificate
Registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.]1
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER THIS
CERTIFICATE NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, REGISTRATION UNDER THE SECURITIES ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF RULE 501 (a)(1), (2), (3) OR (7) OF REGULATION D
UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM THE REGISTRATION
REQUIREMENTS UNDER THE SECURITIES ACT, OR (D) PURSUANT TO ANOTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT IN
EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY THE TRANSFEROR TO
THE TRUSTEE OF A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE LAST PAGE
OF THIS CERTIFICATE.
THE INITIAL INVESTOR IN THIS CERTIFICATE, AND EACH SUBSEQUENT PURCHASER OF THIS
CERTIFICATE, BY PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO
HAVE AGREED TO COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT. A TRANSFEREE IS ALSO REQUIRED TO DELIVER AN
INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY IN THE FORM OF EXHIBIT C TO THE
POOLING AND SERVICING AGREEMENT IF SUCH TRANSFEREE IS A QUALIFIED INSTITUTIONAL
BUYER OR AN ACCREDITED INSTITUTIONAL INVESTOR, AND MAY ALSO BE REQUIRED TO
DELIVER AN OPINION OF COUNSEL IF SUCH TRANSFEREE IS NOT A QUALIFIED
INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A.
THIS CERTIFICATE MAY NOT BE PURCHASED BY OR TRANSFERRED TO A PERSON WHICH IS
(A)(1) AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY
PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
("ERISA"), OR (2) A PLAN SUBJECT TO SECTION 4975 OF THE CODE, OR A GOVERNMENTAL
PLAN AS DEFINED IN SECTION 3(32) OF ERISA, SUBJECT TO ANY FEDERAL, STATE OR
LOCAL LAW WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING PROVISIONS OF
ERISA OR THE CODE (COLLECTIVELY, A "PLAN"), OR (B) A COLLECTIVE INVESTMENT FUND
IN WHICH SUCH PLANS ARE INVESTED, OR (C) AN INSURANCE COMPANY USING ASSETS OF
SEPARATE ACCOUNTS OR GENERAL ACCOUNTS WHICH INCLUDE ASSETS OF PLANS (OR WHICH
ARE DEEMED PURSUANT TO ERISA OR ANY SIMILAR LAW TO INCLUDE ASSETS OF PLANS), OR
(D) A PERSON OR ENTITY ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF
SUCH PLAN TO ACQUIRE SUCH CERTIFICATE UNLESS IT IS PURCHASING THE CERTIFICATE
WITH THE ASSETS OF AN INSURANCE COMPANY GENERAL ACCOUNT AND (1) THE EXEMPTIVE
RELIEF AFFORDED UNDER SECTION III OF PROHIBITED TRANSACTION CLASS EXEMPTION
95-60 IS AVAILABLE FOR THE PURCHASE AND HOLDING OF THE CERTIFICATE BY SUCH
PURCHASER OR (2) THE PURCHASE WOULD NOT CONSTITUTE A "PROHIBITED TRANSACTION"
WITHIN THE MEANING OF SECTION 406 OR 407 OF ERISA, SECTION 4975 OF THE CODE OR A
MATERIALLY SIMILAR CHARACTERIZATION UNDER ANY SIMILAR LAW. EACH CERTIFICATE
OWNER SHALL BE DEEMED TO REPRESENT THAT IT IS NOT A PERSON SPECIFIED IN CLAUSES
(A), (B), (C), OR (D) ABOVE. TRANSFEREES OF THIS CERTIFICATE TAKING DELIVERY IN
CERTIFICATED FORM SHALL BE REQUIRED EITHER (i) TO DELIVER A LETTER IN THE FORM
OF EXHIBIT G TO THE POOLING AND SERVICING AGREEMENT TO THE EFFECT THAT IT IS NOT
A PERSON SPECIFIED IN CLAUSES (A), (B), (C) OR (D) ABOVE, OR (ii) IN THE EVENT
THE TRANSFEREE IS SUCH AN ENTITY SPECIFIED IN (A), (B), (C) OR (D) ABOVE, SUCH
ENTITY SHALL PROVIDE AN OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO
THE CERTIFICATE REGISTRAR AND THE DEPOSITOR THAT THE PURCHASE OR HOLDING OF THE
CERTIFICATES BY OR ON BEHALF OF A PLAN WILL NOT CONSTITUTE OR RESULT IN A
"PROHIBITED TRANSACTION" WITHIN THE MEANING OF SECTION 406 OR 407 OF ERISA OR
SECTION 4975 OF THE CODE, AND WILL NOT SUBJECT THE MASTER SERVICER, THE SPECIAL
SERVICER, THE DEPOSITOR, THE TRUSTEE, THE CERTIFICATE REGISTRAR, THE EXTENSION
ADVISER OR THE UNDERWRITER TO ANY OBLIGATION OR LIABILITY UNDER ERISA OR SECTION
4975 OF THE CODE.
THIS CERTIFICATE IS ISSUED ON MAY 16, 1996, AND BASED ON ITS ISSUE PRICE OF
67.33105%, INCLUDING ACCRUED INTEREST, AND A STATED REDEMPTION PRICE AT MATURITY
EQUAL TO ITS INITIAL PRINCIPAL BALANCE, IS ISSUED WITH ORIGINAL ISSUE DISCOUNT
("OID") FOR FEDERAL INCOME TAX PURPOSES. ASSUMING THAT THIS CERTIFICATE PAYS IN
ACCORDANCE WITH PROJECTED CASH FLOWS REFLECTING THE PREPAYMENT ASSUMPTION OF 0%
CPR (AS DEFINED IN THE PROSPECTUS SUPPLEMENT DATED MAY 2, 1996 WITH RESPECT TO
THE OFFERING OF THE CLASS A-1 CERTIFICATES, CLASS A-2 CERTIFICATES, CLASS A-3
CERTIFICATES, CLASS B CERTIFICATES, CLASS C CERTIFICATES, CLASS D CERTIFICATES
AND CLASS E CERTIFICATES) USED TO PRICE THIS CERTIFICATE: (I) THE AMOUNT OF OID
AS A PERCENTAGE OF THE INITIAL PRINCIPAL BALANCE OF THIS CERTIFICATE IS
APPROXIMATELY 32.66895000%; AND (II) THE ANNUAL YIELD TO MATURITY OF THIS
CERTIFICATE, COMPOUNDED MONTHLY, IS APPROXIMATELY 12.90%. THERE IS NO SHORT
FIRST ACCRUAL PERIOD.
<TABLE>
<CAPTION>
<S> <C>
PASS-THROUGH RATE: 7.350% APPROXIMATE AGGREGATE SCHEDULED PRINCIPAL BALANCE OF
THE MORTGAGE LOANS AFTER DEDUCTING PAYMENTS DUE AND
DENOMINATION: [$________________]2 PREPAYMENTS RECEIVED ON OR BEFORE CUT-OFF DATE:
[Set forth on Schedule A]3 $322,639,635
MASTER SERVICER: AMRESCO MANAGEMENT, INC.
DATE OF POOLING AND SERVICING AGREEMENT:
AS OF MAY 1, 1996 SPECIAL SERVICER: AMRESCO MANAGEMENT, INC.
CUT-OFF DATE: MAY 1, 1996, EXCEPT AS TRUSTEE: THE CHASE MANHATTAN BANK, N.A.
DESCRIBED IN THE POOLING AND SERVICING
AGREEMENT REMIC ADMINISTRATOR: NATIONSBANC MORTGAGE CAPITAL
CORPORATION
CLOSING DATE: MAY 16, 1996
CUSIP NO. 63859CAK9
FIRST DISTRIBUTION DATE:
JUNE 20, 1996 CERTIFICATE NO.: H-1
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE
OF THE CLASS H CERTIFICATES
AS OF THE CLOSING DATE: $9,679,189
<FN>
1 If this Certificate represents a Book-Entry Certificate registered in the name
of Cede & Co., it shall have this legend.
2 If this Certificate represents a Definitive Certificate, the Denomination
shall be specified on the face hereof.
3 If this Certificate represents a Book-Entry Certificate, its Denomination
shall be set forth on Schedule A attached hereto.
</FN>
</TABLE>
<PAGE>
CLASS H CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of fixed rate commercial and multifamily mortgage loans (the "Mortgage
Loans"), all payments on or collections in respect of the Mortgage Loans due
after the Cut-Off Date, all REO Properties and revenues received in respect
thereof, the mortgagee's rights under the Insurance Policies, any Assignment of
Leases, and any guaranties, escrow accounts or other collateral as security for
the Mortgage Loans, and such amounts as shall from time to time be held in the
Certificate Account, the Distribution Accounts, and the REO Accounts, formed and
sold by
NATIONSLINK FUNDING CORPORATION
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN NATIONSLINK
FUNDING CORPORATION, THE MASTER SERVICER, THE SPECIAL SERVICER, THE TRUSTEE, THE
REMIC ADMINISTRATOR OR ANY OF THEIR AFFILIATES. NEITHER THIS CERTIFICATE NOR THE
UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE
UNITED STATES.
THIS CERTIFIES THAT -------------------
is the registered owner of the interest evidenced by this Certificate in the
Class H Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of May 1, 1996 (the "Pooling and Servicing
Agreement"), among NationsLink Funding Corporation (hereinafter called the
"Depositor", which term includes any successor entity under the Pooling and
Servicing Agreement), the Trustee, the Special Servicer, the Master Servicer and
the REMIC Administrator. A summary of certain of the pertinent provisions of the
Pooling and Servicing Agreement is set forth hereafter. To the extent not
defined herein, the capitalized terms used herein shall have the meanings
assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate [set forth
on Schedule A attached hereto]4 [specified on the face hereof]5, by the
aggregate initial Certificate Balance of the Class H Certificates. The
Certificates are designated as the NationsLink Funding Corporation, Commercial
Mortgage Pass-Through Certificates, Series 1996-1 and are issued in fourteen
Classes as specifically set forth in the Pooling and Servicing Agreement. The
Certificates will evidence in the aggregate 100% of the beneficial ownership of
the Trust Fund.
This Certificate does not purport to summarize the Pooling and Servicing
Agreement and reference is made to that agreement for information with respect
to the interests, rights, benefits, obligations, proceeds, and duties evidenced
hereby and the rights, duties and obligations of the Trustee. This Certificate
is issued under and is subject to the terms, provisions and conditions of the
Pooling and Servicing Agreement, to which Pooling and Servicing Agreement, as
amended from time to time, the Certificateholder by virtue of the acceptance
hereof assents and by which the Certificateholder is bound. In the case of any
conflict between terms specified in this Certificate and terms specified in the
Pooling and Servicing Agreement, the terms of the Pooling and Servicing
Agreement shall govern.
- ----------
4 If this Certificate represents a Book-Entry Certificate, its Denomination
shall be set forth on Schedule A attached hereto.
5 If this Certificate represents a Definitive Certificate, the Denomination
shall be specified on the face hereof.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the Trustee
shall distribute to the Person in whose name this Certificate is registered as
of the related Record Date, an amount equal to such Person's pro rata share
(based on the Percentage Interest represented by this Certificate) of that
portion of the aggregate amount of principal and interest then distributable, if
any, allocable to the Class of Certificates of the same Class as this
Certificate for such Distribution Date, all as more described in the Pooling and
Servicing Agreement. All sums distributable on this Certificate are payable in
the coin or currency of the United States of America as at the time of payment
is legal tender for the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class H Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount due to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Appraisal Reduction Amounts on the Mortgage
Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit and Appraisal Reduction Amounts on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other things,
certain collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held in the name of the Trustee on behalf of the
holders of Certificates specified in the Pooling and Servicing Agreement and the
Master Servicer (with respect to the Certificate Account) or the Trustee (with
respect to the Distribution Accounts) will be authorized to make withdrawals
therefrom. Amounts on deposit in such accounts may be invested in Eligible
Investments. Interest or other income earned on funds in the Certificate Account
and Distribution Accounts will be paid to the Master Servicer as set forth in
the Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the master
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a Class of
Certificates shall be made on each Distribution Date (other than the final
distribution on any Certificate) to Certificateholders of record on the related
Record Date by check mailed to the address set forth therefor in the Certificate
Register or, provided that such Certificateholder (1) has provided the Trustee
with wire instructions in writing as least five Business Days prior to the
related Record Date and (2) is the Holder of Certificates with an original
Certificate Balance or Notional Amount, as applicable, of at least $5,000,000,
by wire transfer of immediately available funds to the account of such
Certificateholder at a bank or other entity having appropriate facilities
therefor. The final distribution on this Certificate shall be made in like
manner, but only upon presentment and surrender of this Certificate at the
Corporate Trust Office or such other location specified in the notice to
Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of the
failure of Certificateholders to tender their Certificates shall be set aside
and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(h) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Trustee may, directly or through an agent, take appropriate
steps to contact the remaining non-tendering Certificateholders concerning
surrender of their Certificates. The costs and expenses of holding such funds in
trust and of contacting such Certificateholders shall be paid out of such funds.
No interest shall accrue or be payable to any Certificateholder on any amount
held in trust as a result of such Certificateholder's failure to surrender its
Certificate(s) for final payment thereof in accordance with Section 4.01(h) of
the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registerable
in the Certificate Register only upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Trustee or at the
office of its transfer agent, duly endorsed by, or accompanied by an assignment
in the form below or other written instrument of transfer in form satisfactory
to the Certificate Registrar duly executed by the Holder hereof or such Holder's
attorney-in-fact duly authorized in writing, and thereupon one or more new
Certificates of the same Class in authorized Denominations will be issued to the
designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the Class A
Certificates will be issued in book-entry form through the facilities of DTC in
Denominations of not less than $10,000 initial Certificate Balance and in
integral multiples of $1,000 in excess thereof, with one Certificate of such
Class evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class. Subject to the terms of the Pooling and
Servicing Agreement, the Class IO Certificates will be issued in book-entry form
through the facilities of DTC in Denominations of not less than $1,000,000
initial Notional Amount and in integral multiples of $1,000 in excess thereof,
with one Certificate of such Class evidencing an additional amount equal to the
remainder of the initial Notional Amount of such Class. Subject to the terms of
the Pooling and Servicing Agreement, the Class B, Class C, Class D, Class E,
Class F, Class G, Class H and Class UR Certificates will be issued in book-entry
form through the facilities of DTC in Denominations of $250,000 initial
Certificate Balance, and in integral multiples of $1,000 in excess thereof, with
one Certificate of each such Class evidencing an additional amount equal to the
remainder of the initial Certificate Balance of such Class. The Class R and
Class LR Certificates will be issued in fully registered, certificated form, in
Denominations representing Percentage Interests of not less than 20%.
No fee or service charge shall be imposed by the Certificate Registrar for
its services in respect of any registration of transfer or exchange referred to
in Section 5.02 of the Pooling and Servicing Agreement other than for transfers
to Institutional Accredited Investors as provided in Section 5.02(h) thereof. In
connection with any transfer to an Institutional Accredited Investor, the
Transferor shall reimburse the Trust for any costs (including the cost of the
Certificate Registrar's counsel's review of the documents and any legal
opinions, submitted by the transferor or transferee to the Certificate Registrar
as provided in Section 5.02 of the Pooling and Servicing Agreement) incurred by
the Certificate Registrar in connection with such transfer. The Certificate
Registrar may require payment by each transferor of a sum sufficient to cover
any tax, expense or other governmental charge payable in connection with any
such transfer or exchange.
The Depositor, the Trustee, the REMIC Administrator, the Master Servicer,
the Special Servicer, and the Certificate Registrar and any of their agents may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Master
Servicer, the Special Servicer, the REMIC Administrator, the Certificate
Registrar nor any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time by the
Depositor, the Master Servicer, the Special Servicer, the REMIC Administrator
and the Trustee, without the consent of any of the Certificateholders, to cure
any ambiguity, to correct or supplement any provisions herein or therein that
may be inconsistent with any other provisions herein or therein or to correct
any error; to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of the
Upper-Tier REMIC or the Lower-Tier REMIC to avoid or minimize the imposition of
any tax, provided, however, an Opinion of Counsel is obtained to the effect that
such action shall not adversely affect in any material respect the interest of
any Certificateholder and such action is necessary or desirable to avoid such
tax and such action will not result in the withdrawal, downgrade or
qualification of the then-current rating by any Rating Agency, as evidenced by a
letter from such Rating Agency to such effect; to change the timing and/or
nature of deposits into the Certificate Account or Distribution Accounts or to
change the name in which the Certificate Account is maintained, provided,
however, that the P&I Advance Date shall not be later than the related
Distribution Date, an Opinion of Counsel is obtained to the effect that such
action shall not adversely affect in any material respect the interest of any
Certificateholder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating by any Rating Agency, as
evidenced by a letter from such Rating Agency to such effect; to modify,
eliminate or add to the provisions of Section 5.02(d) of the Pooling and
Servicing Agreement or any other provision thereof restricting transfer of the
Residual Certificates by virtue of their being the REMIC "residual interests,"
provided that such change shall not result in the withdrawal, downgrade or
qualification of the then-current rating assigned to any Class of Certificates,
as evidenced by a letter from each Rating Agency to such effect, and such change
shall not, as evidenced by an Opinion of Counsel, cause either the Trust Fund,
the Lower-Tier REMIC, the Upper-Tier REMIC or any of the Certificateholders
(other than the Transferor) to be subject to a federal tax caused by a Transfer
to a Person that is a Disqualified Organization or a Non-U.S. Person; and to
make any other provisions with respect to matters or questions arising under the
Pooling and Servicing Agreement which shall not be materially inconsistent with
the provisions of the Pooling and Servicing Agreement, provided, however, that
such action shall not, as evidenced by an Opinion of Counsel, adversely affect
in any material respect the interest of any Certificateholder not consenting
thereto.
The Pooling and Servicing Agreement may also be amended from time to time
by the Depositor, the Master Servicer, the Special Servicer, the REMIC
Administrator and the Trustee with the consent of the Holders of Certificates
representing not less than 66% of the aggregate Percentage Interests of each
Class of Certificates affected by the amendment for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Pooling and Servicing Agreement or of modifying in any manner the rights of
the Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate
without the consent of such Certificateholder; or
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment,
without the consent of the Holders of all Certificates of such Class
then outstanding.
No amendment shall be made to the Pooling and Servicing Agreement unless
the Trustee shall have received an Opinion of Counsel that such amendment will
not cause either the Upper-Tier REMIC or the Lower-Tier REMIC to fail to qualify
as a REMIC or result in the imposition of a tax on either the Upper-Tier REMIC,
the Lower-Tier REMIC or the Trust Fund.
Any of the Master Servicer or the Depositor will have the option, upon 60
days' prior notice given to the Trustee, each of the other parties to the
Pooling and Servicing Agreement and the Rating Agencies, which notice the
Trustee is required to forward to Certificateholders in the manner set forth in
the Pooling and Servicing Agreement, to purchase all, but not less than all, of
the Mortgage Loans and all property acquired in respect of any Mortgage Loan
remaining in the Trust Fund, and thereby effect termination of the Trust Fund
and early retirement of the then outstanding Certificates, on any Distribution
Date on which the aggregate Stated Principal Balances of the Mortgage Loans and
any REO Loans remaining in the Trust Fund is reduced to less than 5% of the
aggregate Cut-Off Date Principal Balance of all the Mortgage Loans.
The obligations created by the Pooling and Servicing Agreement and the
Trust Fund created thereby (other than the obligation of the Trustee to make
payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Joseph P. Kennedy, the late Ambassador of the United States to
the Court of St. James, living on the date hereof.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Trustee has executed this Certificate on behalf of the
Trust Fund as Trustee under the Pooling and Servicing Agreement and makes no
representation or warranty as to any of the statements contained herein or the
validity or sufficiency of the Certificates or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE CONSTRUED
IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK WITHOUT
REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed under this official seal.
THE CHASE MANHATTAN BANK, N.A., not
in its individual capacity but
solely as Trustee under the Pooling
and Servicing Agreement.
By: ___________________________
AUTHORIZED OFFICER
Dated: May 16, 1996
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS H CERTIFICATES REFERRED TO IN THE WITHIN-MENTIONED
POOLING AND SERVICING AGREEMENT.
THE CHASE MANHATTAN BANK, N.A.,
CERTIFICATE REGISTRAR
By: ___________________________
AUTHORIZED SIGNATORY
<PAGE>
Schedule A
Certificate Balance of
Definitive Certificates
exchanged or transferred
for, or issued in exchange
for or upon transfer of, Remaining Principal
an interest in this Amount of Book- Notation
Date Book-Entry Certificate Entry Certificate Made By
- ---- ---------------------- ------------------- -------
- --------- ---------------------- ------------------- --------
- --------- ---------------------- ------------------- --------
- --------- ---------------------- ------------------- --------
- --------- ---------------------- ------------------- --------
- --------- ---------------------- ------------------- --------
- --------- ---------------------- ------------------- --------
- --------- ---------------------- ------------------- --------
- --------- ---------------------- ------------------- --------
- --------- ---------------------- ------------------- --------
- --------- ---------------------- ------------------- --------
- --------- ---------------------- ------------------- --------
- --------- ---------------------- ------------------- --------
- --------- ---------------------- ------------------- --------
- --------- ---------------------- ------------------- --------
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights
of Under Uniform Gifts to
Minors survivorship and not
as tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
- --------------------------------------------------------------------------------
(Please insert Social Security or other identifying number of Assignee)
- --------------------------------------------------------------------------------
(Please print or typewrite name and address of assignee)
- --------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
--------------------------------------------------------
Dated:----------- NOTICE: The signature to this assignment must
correspond with the name as written upon the face of
this Certificate in every particular without alteration
or enlargement or any change whatever.
- --------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
<PAGE>
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to _________________________________ for the account of
__________________________________ account number _______________ or, if mailed
by check, to _______________________________________. Statements should be
mailed to _______________________________________________________________. This
information is provided by assignee named above, or
______________________________ , as its agent.
<PAGE>
EXHIBIT A-11
NATIONSLINK FUNDING CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 1996-1, CLASS UR
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER CLASSES OF
CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING AND SERVICING
AGREEMENT.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS ON THE
CERTIFICATES AND THE PORTION OF COLLATERAL SUPPORT DEFICIT ALLOCABLE TO THIS
CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE
LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN
ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE TRUSTEE. THIS CERTIFICATE
CONSTITUTES A REMIC REGULAR INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED.
[Unless this certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the Certificate
Registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.]1
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER THIS
CERTIFICATE NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, REGISTRATION UNDER THE SECURITIES ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF RULE 501 (a)(1), (2), (3) OR (7) OF REGULATION D
UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM THE REGISTRATION
REQUIREMENTS UNDER THE SECURITIES ACT, OR (D) PURSUANT TO ANOTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT IN
EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY THE TRANSFEROR TO
THE TRUSTEE OF A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE LAST PAGE
OF THIS CERTIFICATE.
THE INITIAL INVESTOR IN THIS CERTIFICATE, AND EACH SUBSEQUENT PURCHASER OF THIS
CERTIFICATE, BY PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO
HAVE AGREED TO COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT. A TRANSFEREE IS ALSO REQUIRED TO DELIVER AN
INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY IN THE FORM OF EXHIBIT C TO THE
POOLING AND SERVICING AGREEMENT IF SUCH TRANSFEREE IS A QUALIFIED INSTITUTIONAL
BUYER OR AN ACCREDITED INSTITUTIONAL INVESTOR, AND MAY ALSO BE REQUIRED TO
DELIVER AN OPINION OF COUNSEL IF SUCH TRANSFEREE IS NOT A QUALIFIED
INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A.
THIS CERTIFICATE MAY NOT BE PURCHASED BY OR TRANSFERRED TO A PERSON WHICH IS
(A)(1) AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY
PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
("ERISA"), OR (2) A PLAN SUBJECT TO SECTION 4975 OF THE CODE, OR A GOVERNMENTAL
PLAN AS DEFINED IN SECTION 3(32) OF ERISA, SUBJECT TO ANY FEDERAL, STATE OR
LOCAL LAW WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING PROVISIONS OF
ERISA OR THE CODE (COLLECTIVELY, A "PLAN"), OR (B) A COLLECTIVE INVESTMENT FUND
IN WHICH SUCH PLANS ARE INVESTED, OR (C) AN INSURANCE COMPANY USING ASSETS OF
SEPARATE ACCOUNTS OR GENERAL ACCOUNTS WHICH INCLUDE ASSETS OF PLANS (OR WHICH
ARE DEEMED PURSUANT TO ERISA OR ANY SIMILAR LAW TO INCLUDE ASSETS OF PLANS), OR
(D) A PERSON OR ENTITY ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF
SUCH PLAN TO ACQUIRE SUCH CERTIFICATE UNLESS IT IS PURCHASING THE CERTIFICATE
WITH THE ASSETS OF AN INSURANCE COMPANY GENERAL ACCOUNT AND (1) THE EXEMPTIVE
RELIEF AFFORDED UNDER SECTION III OF PROHIBITED TRANSACTION CLASS EXEMPTION
95-60 IS AVAILABLE FOR THE PURCHASE AND HOLDING OF THE CERTIFICATE BY SUCH
PURCHASER OR (2) THE PURCHASE WOULD NOT CONSTITUTE A "PROHIBITED TRANSACTION"
WITHIN THE MEANING OF SECTION 406 OR 407 OF ERISA, SECTION 4975 OF THE CODE OR A
MATERIALLY SIMILAR CHARACTERIZATION UNDER ANY SIMILAR LAW. EACH CERTIFICATE
OWNER SHALL BE DEEMED TO REPRESENT THAT IT IS NOT A PERSON SPECIFIED IN CLAUSES
(A), (B), (C), OR (D) ABOVE. TRANSFEREES OF THIS CERTIFICATE TAKING DELIVERY IN
CERTIFICATED FORM SHALL BE REQUIRED EITHER (i) TO DELIVER A LETTER IN THE FORM
OF EXHIBIT G TO THE POOLING AND SERVICING AGREEMENT TO THE EFFECT THAT IT IS NOT
A PERSON SPECIFIED IN CLAUSES (A), (B), (C) OR (D) ABOVE, OR (ii) IN THE EVENT
THE TRANSFEREE IS SUCH AN ENTITY SPECIFIED IN (A), (B), (C) OR (D) ABOVE, SUCH
ENTITY SHALL PROVIDE AN OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO
THE CERTIFICATE REGISTRAR AND THE DEPOSITOR THAT THE PURCHASE OR HOLDING OF THE
CERTIFICATES BY OR ON BEHALF OF A PLAN WILL NOT CONSTITUTE OR RESULT IN A
"PROHIBITED TRANSACTION" WITHIN THE MEANING OF SECTION 406 OR 407 OF ERISA OR
SECTION 4975 OF THE CODE, AND WILL NOT SUBJECT THE MASTER SERVICER, THE SPECIAL
SERVICER, THE DEPOSITOR, THE TRUSTEE, THE CERTIFICATE REGISTRAR, THE EXTENSION
ADVISER OR THE UNDERWRITER TO ANY OBLIGATION OR LIABILITY UNDER ERISA OR SECTION
4975 OF THE CODE.
THIS CERTIFICATE IS ISSUED ON MAY 16, 1996, AND BASED ON ITS ISSUE PRICE OF
29.00283%, INCLUDING ACCRUED INTEREST, AND A STATED REDEMPTION PRICE AT MATURITY
EQUAL TO ITS INITIAL PRINCIPAL BALANCE, IS ISSUED WITH ORIGINAL ISSUE DISCOUNT
("OID") FOR FEDERAL INCOME TAX PURPOSES. ASSUMING THAT THIS CERTIFICATE PAYS IN
ACCORDANCE WITH PROJECTED CASH FLOWS REFLECTING THE PREPAYMENT ASSUMPTION OF 0%
CPR (AS DEFINED IN THE PROSPECTUS SUPPLEMENT DATED MAY 2, 1996 WITH RESPECT TO
THE OFFERING OF THE CLASS A-1 CERTIFICATES, CLASS A-2 CERTIFICATES, CLASS A-3
CERTIFICATES, CLASS B CERTIFICATES, CLASS C CERTIFICATES, CLASS D CERTIFICATES
AND CLASS E CERTIFICATES) USED TO PRICE THIS CERTIFICATE: (I) THE AMOUNT OF OID
AS A PERCENTAGE OF THE INITIAL PRINCIPAL BALANCE OF THIS CERTIFICATE IS
APPROXIMATELY 70.99716667%; AND (II) THE ANNUAL YIELD TO MATURITY OF THIS
CERTIFICATE, COMPOUNDED MONTHLY, IS APPROXIMATELY 24.27%. THERE IS NO SHORT
FIRST ACCRUAL PERIOD.
<TABLE>
<CAPTION>
<S> <C>
PASS-THROUGH RATE: 6.800% APPROXIMATE AGGREGATE SCHEDULED PRINCIPAL BALANCE OF
THE MORTGAGE LOANS AFTER DEDUCTING PAYMENTS DUE AND
DENOMINATION: [$________________]2 PREPAYMENTS RECEIVED ON OR BEFORE CUT-OFF DATE:
[Set forth on Schedule A]3 $322,639,635
MASTER SERVICER: AMRESCO MANAGEMENT, INC.
DATE OF POOLING AND SERVICING AGREEMENT:
AS OF MAY 1, 1996 SPECIAL SERVICER: AMRESCO MANAGEMENT, INC.
CUT-OFF DATE: MAY 1, 1996, EXCEPT AS TRUSTEE: THE CHASE MANHATTAN BANK, N.A.
DESCRIBED IN THE POOLING AND SERVICING
AGREEMENT REMIC ADMINISTRATOR: NATIONSBANC MORTGAGE CAPITAL
CORPORATION
CLOSING DATE: MAY 16, 1996
CUSIP NO. 63859CAL7
FIRST DISTRIBUTION DATE:
JUNE 20, 1996 CERTIFICATE NO.: UR-1
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE
OF THE CLASS UR CERTIFICATES
AS OF THE CLOSING DATE: $9,679,194
<FN>
1 If this Certificate represents a Book-Entry Certificate registered in the name
of Cede & Co., it shall have this legend.
2 If this Certificate represents a Definitive Certificate, the Denomination
shall be specified on the face hereof.
3 If this Certificate represents a Book-Entry Certificate, its Denomination
shall be set forth on Schedule A attached hereto.
</FN>
</TABLE>
<PAGE>
CLASS UR CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of fixed rate commercial and multifamily mortgage loans (the "Mortgage
Loans"), all payments on or collections in respect of the Mortgage Loans due
after the Cut-Off Date, all REO Properties and revenues received in respect
thereof, the mortgagee's rights under the Insurance Policies, any Assignment of
Leases, and any guaranties, escrow accounts or other collateral as security for
the Mortgage Loans, and such amounts as shall from time to time be held in the
Certificate Account, the Distribution Accounts, and the REO Accounts, formed and
sold by
NATIONSLINK FUNDING CORPORATION
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN NATIONSLINK
FUNDING CORPORATION, THE MASTER SERVICER, THE SPECIAL SERVICER, THE TRUSTEE, THE
REMIC ADMINISTRATOR OR ANY OF THEIR AFFILIATES. NEITHER THIS CERTIFICATE NOR THE
UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE
UNITED STATES.
THIS CERTIFIES THAT ---------------
is the registered owner of the interest evidenced by this Certificate in the
Class UR Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of May 1, 1996 (the "Pooling and Servicing
Agreement"), among NationsLink Funding Corporation (hereinafter called the
"Depositor", which term includes any successor entity under the Pooling and
Servicing Agreement), the Trustee, the Special Servicer, the Master Servicer and
the REMIC Administrator. A summary of certain of the pertinent provisions of the
Pooling and Servicing Agreement is set forth hereafter. To the extent not
defined herein, the capitalized terms used herein shall have the meanings
assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate [set forth
on Schedule A attached hereto]4 [specified on the face hereof]5, by the
aggregate initial Certificate Balance of the Class UR Certificates. The
Certificates are designated as the NationsLink Funding Corporation, Commercial
Mortgage Pass-Through Certificates, Series 1996-1 and are issued in fourteen
Classes as specifically set forth in the Pooling and Servicing Agreement. The
Certificates will evidence in the aggregate 100% of the beneficial ownership of
the Trust Fund.
This Certificate does not purport to summarize the Pooling and Servicing
Agreement and reference is made to that agreement for information with respect
to the interests, rights, benefits, obligations, proceeds, and duties evidenced
hereby and the rights, duties and obligations of the Trustee. This Certificate
is issued under and is subject to the terms, provisions and conditions of the
Pooling and Servicing Agreement, to which Pooling and Servicing Agreement, as
amended from time to time, the Certificateholder by virtue of the acceptance
hereof assents and by which the Certificateholder is bound. In the case of any
conflict between terms specified in this Certificate and terms specified in the
Pooling and Servicing Agreement, the terms of the Pooling and Servicing
Agreement shall govern.
- ----------
4 If this Certificate represents a Book-Entry Certificate, its Denomination
shall be set forth on Schedule A attached hereto.
5 If this Certificate represents a Definitive Certificate, the Denomination
shall be specified on the face hereof.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the Trustee
shall distribute to the Person in whose name this Certificate is registered as
of the related Record Date, an amount equal to such Person's pro rata share
(based on the Percentage Interest represented by this Certificate) of that
portion of the aggregate amount of principal and interest then distributable, if
any, allocable to the Class of Certificates of the same Class as this
Certificate for such Distribution Date, all as more described in the Pooling and
Servicing Agreement. All sums distributable on this Certificate are payable in
the coin or currency of the United States of America as at the time of payment
is legal tender for the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class UR Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount due to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Appraisal Reduction Amounts on the Mortgage
Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit and Appraisal Reduction Amounts on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other things,
certain collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held in the name of the Trustee on behalf of the
holders of Certificates specified in the Pooling and Servicing Agreement and the
Master Servicer (with respect to the Certificate Account) or the Trustee (with
respect to the Distribution Accounts) will be authorized to make withdrawals
therefrom. Amounts on deposit in such accounts may be invested in Eligible
Investments. Interest or other income earned on funds in the Certificate Account
and Distribution Accounts will be paid to the Master Servicer as set forth in
the Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the master
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a Class of
Certificates shall be made on each Distribution Date (other than the final
distribution on any Certificate) to Certificateholders of record on the related
Record Date by check mailed to the address set forth therefor in the Certificate
Register or, provided that such Certificateholder (1) has provided the Trustee
with wire instructions in writing as least five Business Days prior to the
related Record Date and (2) is the Holder of Certificates with an original
Certificate Balance or Notional Amount, as applicable, of at least $5,000,000,
by wire transfer of immediately available funds to the account of such
Certificateholder at a bank or other entity having appropriate facilities
therefor. The final distribution on this Certificate shall be made in like
manner, but only upon presentment and surrender of this Certificate at the
Corporate Trust Office or such other location specified in the notice to
Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of the
failure of Certificateholders to tender their Certificates shall be set aside
and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(h) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Trustee may, directly or through an agent, take appropriate
steps to contact the remaining non-tendering Certificateholders concerning
surrender of their Certificates. The costs and expenses of holding such funds in
trust and of contacting such Certificateholders shall be paid out of such funds.
No interest shall accrue or be payable to any Certificateholder on any amount
held in trust as a result of such Certificateholder's failure to surrender its
Certificate(s) for final payment thereof in accordance with Section 4.01(h) of
the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registerable
in the Certificate Register only upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Trustee or at the
office of its transfer agent, duly endorsed by, or accompanied by an assignment
in the form below or other written instrument of transfer in form satisfactory
to the Certificate Registrar duly executed by the Holder hereof or such Holder's
attorney-in-fact duly authorized in writing, and thereupon one or more new
Certificates of the same Class in authorized Denominations will be issued to the
designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the Class A
Certificates will be issued in book-entry form through the facilities of DTC in
Denominations of not less than $10,000 initial Certificate Balance and in
integral multiples of $1,000 in excess thereof, with one Certificate of such
Class evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class. Subject to the terms of the Pooling and
Servicing Agreement, the Class IO Certificates will be issued in book-entry form
through the facilities of DTC in Denominations of not less than $1,000,000
initial Notional Amount and in integral multiples of $1,000 in excess thereof,
with one Certificate of such Class evidencing an additional amount equal to the
remainder of the initial Notional Amount of such Class. Subject to the terms of
the Pooling and Servicing Agreement, the Class B, Class C, Class D, Class E,
Class F, Class G, Class H and Class UR Certificates will be issued in book-entry
form through the facilities of DTC in Denominations of $250,000 initial
Certificate Balance, and in integral multiples of $1,000 in excess thereof, with
one Certificate of each such Class evidencing an additional amount equal to the
remainder of the initial Certificate Balance of such Class. The Class R and
Class LR Certificates will be issued in fully registered, certificated form, in
Denominations representing Percentage Interests of not less than 20%.
No fee or service charge shall be imposed by the Certificate Registrar for
its services in respect of any registration of transfer or exchange referred to
in Section 5.02 of the Pooling and Servicing Agreement other than for transfers
to Institutional Accredited Investors as provided in Section 5.02(h) thereof. In
connection with any transfer to an Institutional Accredited Investor, the
Transferor shall reimburse the Trust for any costs (including the cost of the
Certificate Registrar's counsel's review of the documents and any legal
opinions, submitted by the transferor or transferee to the Certificate Registrar
as provided in Section 5.02 of the Pooling and Servicing Agreement) incurred by
the Certificate Registrar in connection with such transfer. The Certificate
Registrar may require payment by each transferor of a sum sufficient to cover
any tax, expense or other governmental charge payable in connection with any
such transfer or exchange.
The Depositor, the Trustee, the REMIC Administrator, the Master Servicer,
the Special Servicer, and the Certificate Registrar and any of their agents may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Master
Servicer, the Special Servicer, the REMIC Administrator, the Certificate
Registrar nor any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time by the
Depositor, the Master Servicer, the Special Servicer, the REMIC Administrator
and the Trustee, without the consent of any of the Certificateholders, to cure
any ambiguity, to correct or supplement any provisions herein or therein that
may be inconsistent with any other provisions herein or therein or to correct
any error; to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of the
Upper-Tier REMIC or the Lower-Tier REMIC to avoid or minimize the imposition of
any tax, provided, however, an Opinion of Counsel is obtained to the effect that
such action shall not adversely affect in any material respect the interest of
any Certificateholder and such action is necessary or desirable to avoid such
tax and such action will not result in the withdrawal, downgrade or
qualification of the then-current rating by any Rating Agency, as evidenced by a
letter from such Rating Agency to such effect; to change the timing and/or
nature of deposits into the Certificate Account or Distribution Accounts or to
change the name in which the Certificate Account is maintained, provided,
however, that the P&I Advance Date shall not be later than the related
Distribution Date, an Opinion of Counsel is obtained to the effect that such
action shall not adversely affect in any material respect the interest of any
Certificateholder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating by any Rating Agency, as
evidenced by a letter from such Rating Agency to such effect; to modify,
eliminate or add to the provisions of Section 5.02(d) of the Pooling and
Servicing Agreement or any other provision thereof restricting transfer of the
Residual Certificates by virtue of their being the REMIC "residual interests,"
provided that such change shall not result in the withdrawal, downgrade or
qualification of the then-current rating assigned to any Class of Certificates,
as evidenced by a letter from each Rating Agency to such effect, and such change
shall not, as evidenced by an Opinion of Counsel, cause either the Trust Fund,
the Lower-Tier REMIC, the Upper-Tier REMIC or any of the Certificateholders
(other than the Transferor) to be subject to a federal tax caused by a Transfer
to a Person that is a Disqualified Organization or a Non-U.S. Person; and to
make any other provisions with respect to matters or questions arising under the
Pooling and Servicing Agreement which shall not be materially inconsistent with
the provisions of the Pooling and Servicing Agreement, provided, however, that
such action shall not, as evidenced by an Opinion of Counsel, adversely affect
in any material respect the interest of any Certificateholder not consenting
thereto.
The Pooling and Servicing Agreement may also be amended from time to time
by the Depositor, the Master Servicer, the Special Servicer, the REMIC
Administrator and the Trustee with the consent of the Holders of Certificates
representing not less than 66% of the aggregate Percentage Interests of each
Class of Certificates affected by the amendment for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Pooling and Servicing Agreement or of modifying in any manner the rights of
the Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate
without the consent of such Certificateholder; or
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment,
without the consent of the Holders of all Certificates of such Class
then outstanding.
No amendment shall be made to the Pooling and Servicing Agreement unless
the Trustee shall have received an Opinion of Counsel that such amendment will
not cause either the Upper-Tier REMIC or the Lower-Tier REMIC to fail to qualify
as a REMIC or result in the imposition of a tax on either the Upper-Tier REMIC,
the Lower-Tier REMIC or the Trust Fund.
Any of the Master Servicer or the Depositor will have the option, upon 60
days' prior notice given to the Trustee, each of the other parties to the
Pooling and Servicing Agreement and the Rating Agencies, which notice the
Trustee is required to forward to Certificateholders in the manner set forth in
the Pooling and Servicing Agreement, to purchase all, but not less than all, of
the Mortgage Loans and all property acquired in respect of any Mortgage Loan
remaining in the Trust Fund, and thereby effect termination of the Trust Fund
and early retirement of the then outstanding Certificates, on any Distribution
Date on which the aggregate Stated Principal Balances of the Mortgage Loans and
any REO Loans remaining in the Trust Fund is reduced to less than 5% of the
aggregate Cut-Off Date Principal Balance of all the Mortgage Loans.
The obligations created by the Pooling and Servicing Agreement and the
Trust Fund created thereby (other than the obligation of the Trustee to make
payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Joseph P. Kennedy, the late Ambassador of the United States to
the Court of St. James, living on the date hereof.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Trustee has executed this Certificate on behalf of the
Trust Fund as Trustee under the Pooling and Servicing Agreement and makes no
representation or warranty as to any of the statements contained herein or the
validity or sufficiency of the Certificates or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE CONSTRUED
IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK WITHOUT
REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed under this official seal.
THE CHASE MANHATTAN BANK, N.A., not
in its individual capacity but
solely as Trustee under the Pooling
and Servicing Agreement.
By: ___________________________
AUTHORIZED OFFICER
Dated: May 16, 1996
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS UR CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
THE CHASE MANHATTAN BANK, N.A.,
CERTIFICATE REGISTRAR
By: ___________________________
AUTHORIZED SIGNATORY
<PAGE>
Schedule A
Certificate Balance of
Definitive Certificates
exchanged or transferred
for, or issued in exchange
for or upon transfer of, Remaining Principal
an interest in this Amount of Book- Notation
Date Book-Entry Certificate Entry Certificate Made By
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<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights
of Under Uniform Gifts to
Minors survivorship and not
as tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
- --------------------------------------------------------------------------------
(Please insert Social Security or other identifying number of Assignee)
- --------------------------------------------------------------------------------
(Please print or typewrite name and address of assignee)
- --------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
--------------------------------------------------------
Dated:------------ NOTICE: The signature to this assignment must
correspond with the name as written upon the face of
this Certificate in every particular without alteration
or enlargement or any change whatever.
- --------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
<PAGE>
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to _________________________________ for the account of
__________________________________ account number _______________ or, if mailed
by check, to _______________________________________. Statements should be
mailed to _______________________________________________________________. This
information is provided by assignee named above, or
______________________________ , as its agent.
<PAGE>
EXHIBIT A-12
NATIONSLINK FUNDING CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 1996-1, CLASS IO
THE NOTIONAL AMOUNT ON WHICH THE INTEREST PAYABLE TO THE HOLDERS OF THE CLASS IO
CERTIFICATES IS BASED, WILL BE REDUCED AS A RESULT OF PRINCIPAL PAYMENTS AND
LOSSES ON THE MORTGAGE LOANS. ACCORDINGLY, THE INTEREST PAYABLE PURSUANT TO THIS
CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. THIS CERTIFICATE CONSTITUTES
A REMIC REGULAR INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
[Unless this certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the Certificate
Registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.]1
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER THIS
CERTIFICATE NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, REGISTRATION UNDER THE SECURITIES ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF RULE 501 (a)(1), (2), (3) OR (7) OF REGULATION D
UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM THE REGISTRATION
REQUIREMENTS UNDER THE SECURITIES ACT, OR (D) PURSUANT TO ANOTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT IN
EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY THE TRANSFEROR TO
THE TRUSTEE OF A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE LAST PAGE
OF THIS CERTIFICATE.
THE INITIAL INVESTOR IN THIS CERTIFICATE, AND EACH SUBSEQUENT PURCHASER OF THIS
CERTIFICATE, BY PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO
HAVE AGREED TO COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT. A TRANSFEREE IS ALSO REQUIRED TO DELIVER AN
INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY IN THE FORM OF EXHIBIT C TO THE
POOLING AND SERVICING AGREEMENT IF SUCH TRANSFEREE IS A QUALIFIED INSTITUTIONAL
BUYER OR AN ACCREDITED INSTITUTIONAL INVESTOR, AND MAY ALSO BE REQUIRED TO
DELIVER AN OPINION OF COUNSEL IF SUCH TRANSFEREE IS NOT A QUALIFIED
INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A.
THIS CERTIFICATE IS ISSUED ON MAY 16, 1996, AT AN ISSUE PRICE OF 2.56933% OF THE
INITIAL NOTIONAL AMOUNT OF THE CLASS IO CERTIFICATES, INCLUDING ACCRUED
INTEREST, AND A STATED REDEMPTION PRICE AT MATURITY EQUAL TO ALL INTEREST
DISTRIBUTIONS HEREON, AND IS ISSUED WITH ORIGINAL ISSUE DISCOUNT ("OID") FOR
FEDERAL INCOME TAX PURPOSES. ASSUMING (A) THAT THIS CERTIFICATE PAYS IN
ACCORDANCE WITH PROJECTED CASH FLOWS REFLECTING THE PREPAYMENT ASSUMPTION OF 0%
CPR (AS DEFINED IN THE PROSPECTUS SUPPLEMENT DATED MAY 2, 1996 WITH RESPECT TO
THE OFFERING OF THE CLASS A-1 CERTIFICATES, CLASS A-2 CERTIFICATES, CLASS A-3
CERTIFICATES, CLASS B CERTIFICATES, CLASS C CERTIFICATES, CLASS D CERTIFICATES
AND CLASS E CERTIFICATES) USED TO PRICE THIS CERTIFICATE AND (B) THAT THE
INTEREST RATE AT WHICH DISTRIBUTIONS OF INTEREST ON THIS CERTIFICATE ACTUALLY
WILL BE MADE WILL BE DETERMINED AS THOUGH THE PASS-THROUGH RATE ON THIS
CERTIFICATE APPLICABLE TO THE FIRST DISTRIBUTION DATE WILL CHANGE AS THE RELATED
MORTGAGE LOANS MATURE IN ACCORDANCE WITH THE PREPAYMENT ASSUMPTION: (I) THE
AMOUNT OF OID AS A PERCENTAGE OF THE INITIAL CLASS IO NOTIONAL AMOUNT IS
APPROXIMATELY 1.78980154%; AND (II) THE ANNUAL YIELD TO MATURITY OF THIS
CERTIFICATE, COMPOUNDED MONTHLY, IS APPROXIMATELY 12.23%. THERE IS NO SHORT
FIRST ACCRUAL PERIOD.
<TABLE>
<CAPTION>
<S> <C>
PASS-THROUGH RATE: With respect to any APPROXIMATE INITIAL
Distribution Date, a rate per annum, rounded NOTIONAL AMOUNT
to five decimal places, equal to the excess, OF THE CLASS IO CERTIFICATES
if any, of (a) the weighted average of the AS OF THE CLOSING DATE: $322,607,371
Effective Net Mortgage Rates of the Mortgage
Loans, weighted on the basis of their APPROXIMATE AGGREGATE SCHEDULED PRINCIPAL BALANCE
respective Stated Principal Balances as of OF THE MORTGAGE LOANS AFTER DEDUCTING PAYMENTS DUE
the preceding Distribution Date (after AND PREPAYMENTS RECEIVED ON OR BEFORE CUT-OFF
giving effect to the distribution of DATE: $322,639,635
principal on such Distribution Date), or, in
the case of the first Distribution Date, the MASTER SERVICER: AMRESCO MANAGEMENT, INC.
Cut-off Date, over (b) the weighted average
of the Pass-Through Rates on all of the SPECIAL SERVICER: AMRESCO MANAGEMENT, INC.
other Certificates, weighted on the basis of
their respective Certificate Balances TRUSTEE: THE CHASE MANHATTAN BANK, N.A.
immediately prior to such Distribution Date.
DENOMINATION: [$________________]2
[Set forth on Schedule A]3 REMIC ADMINISTRATOR: NATIONSBANC MORTGAGE CAPITAL
CORPORATION
DATE OF POOLING AND SERVICING AGREEMENT: AS CUSIP NO. 63859CAM5
OF MAY 1, 1996
CERTIFICATE NO.: IO-__
CUT-OFF DATE: MAY 1, 1996, EXCEPT AS
DESCRIBED IN THE POOLING AND SERVICING
AGREEMENT
CLOSING DATE: MAY 16, 1996
FIRST DISTRIBUTION DATE:
JUNE 20, 1996
<FN>
1 If this Certificate represents a Book-Entry Certificate registered in the name
of Cede & Co., it shall have this legend.
2 If this Certificate represents a Definitive Certificate, the Denomination
shall be specified on the face hereof.
3 If this Certificate represents a Book-Entry Certificate, its Denomination
shall be set forth on Schedule A attached hereto.
</FN>
</TABLE>
<PAGE>
CLASS IO CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of fixed rate commercial and multifamily mortgage loans (the "Mortgage
Loans"), all payments on or collections in respect of the Mortgage Loans due
after the Cut-Off Date, all REO Properties and revenues received in respect
thereof, the mortgagee's rights under the Insurance Policies, any Assignment of
Leases, and any guaranties, escrow accounts or other collateral as security for
the Mortgage Loans, and such amounts as shall from time to time be held in the
Certificate Account, the Distribution Accounts, and the REO Accounts, formed and
sold by
NATIONSLINK FUNDING CORPORATION
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN NATIONSLINK
FUNDING CORPORATION, THE MASTER SERVICER, THE SPECIAL SERVICER, THE TRUSTEE, THE
REMIC ADMINISTRATOR OR ANY OF THEIR AFFILIATES. NEITHER THIS CERTIFICATE NOR THE
UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE
UNITED STATES.
THIS CERTIFIES THAT -------------------
is the registered owner of the interest evidenced by this Certificate in the
Class IO Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of May 1, 1996 (the "Pooling and Servicing
Agreement"), among NationsLink Funding Corporation (hereinafter called the
"Depositor", which term includes any successor entity under the Pooling and
Servicing Agreement), the Trustee, the Special Servicer, the Master Servicer and
the REMIC Administrator. A summary of certain of the pertinent provisions of the
Pooling and Servicing Agreement is set forth hereafter. To the extent not
defined herein, the capitalized terms used herein shall have the meanings
assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate [set forth
on Schedule A attached hereto]4 [specified on the face hereof]5, by the
aggregate initial Notional Amount of the Class IO Certificates. The Certificates
are designated as the NationsLink Funding Corporation, Commercial Mortgage
Pass-Through Certificates, Series 1996-1 and are issued in fourteen Classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust
Fund.
This Certificate does not purport to summarize the Pooling and Servicing
Agreement and reference is made to that agreement for information with respect
to the interests, rights, benefits, obligations, proceeds, and duties evidenced
hereby and the rights, duties and obligations of the Trustee. This Certificate
is issued under and is subject to the terms, provisions and conditions of the
Pooling and Servicing Agreement, to which Pooling and Servicing Agreement, as
amended from time to time, the Certificateholder by virtue of the acceptance
hereof assents and by which the Certificateholder is bound. In the case of any
conflict between terms specified in this Certificate and terms specified in the
Pooling and Servicing Agreement, the terms of the Pooling and Servicing
Agreement shall govern.
- ----------
4 If this Certificate represents a Book-Entry Certificate, its Denomination
shall be set forth on Schedule A attached hereto.
5 If this Certificate represents a Definitive Certificate, the Denomination
shall be specified on the face hereof.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the Trustee
shall distribute to the Person in whose name this Certificate is registered as
of the related Record Date, an amount equal to such Person's pro rata share
(based on the Percentage Interest represented by this Certificate) of that
portion of the aggregate amount of interest then distributable, if any,
allocable to the Class of Certificates of the same Class as this Certificate for
such Distribution Date, all as more described in the Pooling and Servicing
Agreement. Holders of this Certificate will not be entitled to distributions in
respect of principal. Holders of this Certificate may be entitled to Prepayment
Premiums and Yield Maintenance Charges as provided in the Pooling and Servicing
Agreement. All sums distributable on this Certificate are payable in the coin or
currency of the United States of America as at the time of payment is legal
tender for the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class IO Pass-Through
Rate specified above on the Notional Amount of this Certificate immediately
prior to each Distribution Date. Interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the Interest Distribution Amount to be distributed on the Certificates of
this Class as of such Distribution Date, with a final distribution to be made
upon retirement of this Certificate as set forth in the Pooling and Servicing
Agreement.
The Certificates are limited in right of payment to, among other things,
certain collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held in the name of the Trustee on behalf of the
holders of Certificates specified in the Pooling and Servicing Agreement and the
Master Servicer (with respect to the Certificate Account) or the Trustee (with
respect to the Distribution Accounts) will be authorized to make withdrawals
therefrom. Amounts on deposit in such accounts may be invested in Eligible
Investments. Interest or other income earned on funds in the Certificate Account
and Distribution Accounts will be paid to the Master Servicer as set forth in
the Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the master
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a Class of
Certificates shall be made on each Distribution Date (other than the final
distribution on any Certificate) to Certificateholders of record on the related
Record Date by check mailed to the address set forth therefor in the Certificate
Register or, provided that such Certificateholder (1) has provided the Trustee
with wire instructions in writing as least five Business Days prior to the
related Record Date and (2) is the Holder of Certificates with an original
Certificate Balance or Notional Amount, as applicable, of at least $5,000,000,
by wire transfer of immediately available funds to the account of such
Certificateholder at a bank or other entity having appropriate facilities
therefor. The final distribution on this Certificate shall be made in like
manner, but only upon presentment and surrender of this Certificate at the
Corporate Trust Office or such other location specified in the notice to
Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of the
failure of Certificateholders to tender their Certificates shall be set aside
and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(h) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Trustee may, directly or through an agent, take appropriate
steps to contact the remaining non-tendering Certificateholders concerning
surrender of their Certificates. The costs and expenses of holding such funds in
trust and of contacting such Certificateholders shall be paid out of such funds.
No interest shall accrue or be payable to any Certificateholder on any amount
held in trust as a result of such Certificateholder's failure to surrender its
Certificate(s) for final payment thereof in accordance with Section 4.01(h) of
the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registerable
in the Certificate Register only upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Trustee or at the
office of its transfer agent, duly endorsed by, or accompanied by an assignment
in the form below or other written instrument of transfer in form satisfactory
to the Certificate Registrar duly executed by the Holder hereof or such Holder's
attorney-in-fact duly authorized in writing, and thereupon one or more new
Certificates of the same Class in authorized Denominations will be issued to the
designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the Class A
Certificates will be issued in book-entry form through the facilities of DTC in
Denominations of not less than $10,000 initial Certificate Balance and in
integral multiples of $1,000 in excess thereof, with one Certificate of such
Class evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class. Subject to the terms of the Pooling and
Servicing Agreement, the Class IO Certificates will be issued in book-entry form
through the facilities of DTC in Denominations of not less than $1,000,000
initial Notional Amount and in integral multiples of $1,000 in excess thereof,
with one Certificate of such Class evidencing an additional amount equal to the
remainder of the initial Notional Amount of such Class. Subject to the terms of
the Pooling and Servicing Agreement, the Class B, Class C, Class D, Class E,
Class F, Class G, Class H and Class UR Certificates will be issued in book-entry
form through the facilities of DTC in Denominations of $250,000 initial
Certificate Balance, and in integral multiples of $1,000 in excess thereof, with
one Certificate of each such Class evidencing an additional amount equal to the
remainder of the initial Certificate Balance of such Class. The Class R and
Class LR Certificates will be issued in fully registered, certificated form, in
Denominations representing Percentage Interests of not less than 20%.
No fee or service charge shall be imposed by the Certificate Registrar for
its services in respect of any registration of transfer or exchange referred to
in Section 5.02 of the Pooling and Servicing Agreement other than for transfers
to Institutional Accredited Investors as provided in Section 5.02(h) thereof. In
connection with any transfer to an Institutional Accredited Investor, the
Transferor shall reimburse the Trust for any costs (including the cost of the
Certificate Registrar's counsel's review of the documents and any legal
opinions, submitted by the transferor or transferee to the Certificate Registrar
as provided in Section 5.02 of the Pooling and Servicing Agreement) incurred by
the Certificate Registrar in connection with such transfer. The Certificate
Registrar may require payment by each transferor of a sum sufficient to cover
any tax, expense or other governmental charge payable in connection with any
such transfer or exchange.
The Depositor, the Trustee, the REMIC Administrator, the Master Servicer,
the Special Servicer, and the Certificate Registrar and any of their agents may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Master
Servicer, the Special Servicer, the REMIC Administrator, the Certificate
Registrar nor any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time by the
Depositor, the Master Servicer, the Special Servicer, the REMIC Administrator
and the Trustee, without the consent of any of the Certificateholders, to cure
any ambiguity, to correct or supplement any provisions herein or therein that
may be inconsistent with any other provisions herein or therein or to correct
any error; to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of the
Upper-Tier REMIC or the Lower-Tier REMIC to avoid or minimize the imposition of
any tax, provided, however, an Opinion of Counsel is obtained to the effect that
such action shall not adversely affect in any material respect the interest of
any Certificateholder and such action is necessary or desirable to avoid such
tax and such action will not result in the withdrawal, downgrade or
qualification of the then-current rating by any Rating Agency, as evidenced by a
letter from such Rating Agency to such effect; to change the timing and/or
nature of deposits into the Certificate Account or Distribution Accounts or to
change the name in which the Certificate Account is maintained, provided,
however, that the P&I Advance Date shall not be later than the related
Distribution Date, an Opinion of Counsel is obtained to the effect that such
action shall not adversely affect in any material respect the interest of any
Certificateholder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating by any Rating Agency, as
evidenced by a letter from such Rating Agency to such effect; to modify,
eliminate or add to the provisions of Section 5.02(d) of the Pooling and
Servicing Agreement or any other provision thereof restricting transfer of the
Residual Certificates by virtue of their being the REMIC "residual interests,"
provided that such change shall not result in the withdrawal, downgrade or
qualification of the then-current rating assigned to any Class of Certificates,
as evidenced by a letter from each Rating Agency to such effect, and such change
shall not, as evidenced by an Opinion of Counsel, cause either the Trust Fund,
the Lower-Tier REMIC, the Upper-Tier REMIC or any of the Certificateholders
(other than the Transferor) to be subject to a federal tax caused by a Transfer
to a Person that is a Disqualified Organization or a Non-U.S. Person; and to
make any other provisions with respect to matters or questions arising under the
Pooling and Servicing Agreement which shall not be materially inconsistent with
the provisions of the Pooling and Servicing Agreement, provided, however, that
such action shall not, as evidenced by an Opinion of Counsel, adversely affect
in any material respect the interest of any Certificateholder not consenting
thereto.
The Pooling and Servicing Agreement may also be amended from time to time
by the Depositor, the Master Servicer, the Special Servicer, the REMIC
Administrator and the Trustee with the consent of the Holders of Certificates
representing not less than 66% of the aggregate Percentage Interests of each
Class of Certificates affected by the amendment for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Pooling and Servicing Agreement or of modifying in any manner the rights of
the Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate
without the consent of such Certificateholder; or
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment,
without the consent of the Holders of all Certificates of such Class
then outstanding.
No amendment shall be made to the Pooling and Servicing Agreement unless
the Trustee shall have received an Opinion of Counsel that such amendment will
not cause either the Upper-Tier REMIC or the Lower-Tier REMIC to fail to qualify
as a REMIC or result in the imposition of a tax on either the Upper-Tier REMIC,
the Lower-Tier REMIC or the Trust Fund.
Any of the Master Servicer or the Depositor will have the option, upon 60
days' prior notice given to the Trustee, each of the other parties to the
Pooling and Servicing Agreement and the Rating Agencies, which notice the
Trustee is required to forward to Certificateholders in the manner set forth in
the Pooling and Servicing Agreement, to purchase all, but not less than all, of
the Mortgage Loans and all property acquired in respect of any Mortgage Loan
remaining in the Trust Fund, and thereby effect termination of the Trust Fund
and early retirement of the then outstanding Certificates, on any Distribution
Date on which the aggregate Stated Principal Balances of the Mortgage Loans and
any REO Loans remaining in the Trust Fund is reduced to less than 5% of the
aggregate Cut-Off Date Principal Balance of all the Mortgage Loans.
The obligations created by the Pooling and Servicing Agreement and the
Trust Fund created thereby (other than the obligation of the Trustee to make
payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Joseph P. Kennedy, the late Ambassador of the United States to
the Court of St. James, living on the date hereof.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Trustee has executed this Certificate on behalf of the
Trust Fund as Trustee under the Pooling and Servicing Agreement and makes no
representation or warranty as to any of the statements contained herein or the
validity or sufficiency of the Certificates or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE CONSTRUED
IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK WITHOUT
REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed under this official seal.
THE CHASE MANHATTAN BANK, N.A., not
in its individual capacity but
solely as Trustee under the Pooling
and Servicing Agreement.
By: ___________________________
AUTHORIZED OFFICER
Dated: May 16, 1996
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS IO CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
THE CHASE MANHATTAN BANK, N.A.,
CERTIFICATE REGISTRAR
By: ___________________________
AUTHORIZED SIGNATORY
<PAGE>
Schedule A
Certificate Balance of
Definitive Certificates
exchanged or transferred
for, or issued in exchange
for or upon transfer of, Remaining Principal
an interest in this Amount of Book- Notation
Date Book-Entry Certificate Entry Certificate Made By
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- --------- ---------------------- ------------------- --------
- --------- ---------------------- ------------------- --------
- --------- ---------------------- ------------------- --------
- --------- ---------------------- ------------------- --------
- --------- ---------------------- ------------------- --------
- --------- ---------------------- ------------------- --------
- --------- ---------------------- ------------------- --------
- --------- ---------------------- ------------------- --------
- --------- ---------------------- ------------------- --------
- --------- ---------------------- ------------------- --------
- --------- ---------------------- ------------------- --------
- --------- ---------------------- ------------------- --------
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<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights
of Under Uniform Gifts to
Minors survivorship and not
as tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
- --------------------------------------------------------------------------------
(Please insert Social Security or other identifying number of Assignee)
- --------------------------------------------------------------------------------
(Please print or typewrite name and address of assignee)
- --------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
--------------------------------------------------------
Dated:-------------- NOTICE: The signature to this assignment must
correspond with the name as written upon the face of
this Certificate in every particular without alteration
or enlargement or any change whatever.
- --------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
<PAGE>
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to _________________________________ for the account of
__________________________________ account number _______________ or, if mailed
by check, to _______________________________________. Statements should be
mailed to _______________________________________________________________. This
information is provided by assignee named above, or
______________________________ , as its agent.
<PAGE>
EXHIBIT A-13
NATIONSLINK FUNDING CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 1996-1, CLASS R
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER THIS
CERTIFICATE NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, REGISTRATION UNDER THE SECURITIES ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF RULE 501 (a)(1), (2), (3) OR (7) OF REGULATION D
UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM THE REGISTRATION
REQUIREMENTS UNDER THE SECURITIES ACT, OR (D) PURSUANT TO ANOTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT IN
EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY THE TRANSFEROR TO
THE TRUSTEE OF A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE LAST PAGE
OF THIS CERTIFICATE.
THE INITIAL INVESTOR IN THIS CERTIFICATE, AND EACH SUBSEQUENT PURCHASER OF THIS
CERTIFICATE, BY PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO
HAVE AGREED TO COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT. A TRANSFEREE IS ALSO REQUIRED TO DELIVER AN
INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY IN THE FORM OF EXHIBIT C TO THE
POOLING AND SERVICING AGREEMENT IF SUCH TRANSFEREE IS A QUALIFIED INSTITUTIONAL
BUYER OR AN ACCREDITED INSTITUTIONAL INVESTOR, AND MAY ALSO BE REQUIRED TO
DELIVER AN OPINION OF COUNSEL IF SUCH TRANSFEREE IS NOT A QUALIFIED
INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A.
THIS CERTIFICATE MAY NOT BE PURCHASED BY OR TRANSFERRED TO A PERSON WHICH IS
(A)(1) AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY
PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
("ERISA"), OR (2) A PLAN SUBJECT TO SECTION 4975 OF THE CODE, OR A GOVERNMENTAL
PLAN AS DEFINED IN SECTION 3(32) OF ERISA, SUBJECT TO ANY FEDERAL, STATE OR
LOCAL LAW WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING PROVISIONS OF
ERISA OR THE CODE (COLLECTIVELY, A "PLAN"), OR (B) A COLLECTIVE INVESTMENT FUND
IN WHICH SUCH PLANS ARE INVESTED, OR (C) AN INSURANCE COMPANY USING ASSETS OF
SEPARATE ACCOUNTS OR GENERAL ACCOUNTS WHICH INCLUDE ASSETS OF PLANS (OR WHICH
ARE DEEMED PURSUANT TO ERISA OR ANY SIMILAR LAW TO INCLUDE ASSETS OF PLANS), OR
(D) A PERSON OR ENTITY ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF
SUCH PLAN TO ACQUIRE SUCH CERTIFICATE UNLESS IT IS PURCHASING THE CERTIFICATE
WITH THE ASSETS OF AN INSURANCE COMPANY GENERAL ACCOUNT AND (1) THE EXEMPTIVE
RELIEF AFFORDED UNDER SECTION III OF PROHIBITED TRANSACTION CLASS EXEMPTION
95-60 IS AVAILABLE FOR THE PURCHASE AND HOLDING OF THE CERTIFICATE BY SUCH
PURCHASER OR (2) THE PURCHASE WOULD NOT CONSTITUTE A "PROHIBITED TRANSACTION"
WITHIN THE MEANING OF SECTION 406 OR 407 OF ERISA, SECTION 4975 OF THE CODE OR A
MATERIALLY SIMILAR CHARACTERIZATION UNDER ANY SIMILAR LAW. EACH CERTIFICATE
OWNER SHALL BE DEEMED TO REPRESENT THAT IT IS NOT A PERSON SPECIFIED IN CLAUSES
(A), (B), (C), OR (D) ABOVE. TRANSFEREES OF THIS CERTIFICATE TAKING DELIVERY IN
CERTIFICATED FORM SHALL BE REQUIRED EITHER (i) TO DELIVER A LETTER IN THE FORM
OF EXHIBIT G TO THE POOLING AND SERVICING AGREEMENT TO THE EFFECT THAT IT IS NOT
A PERSON SPECIFIED IN CLAUSES (A), (B), (C) OR (D) ABOVE, OR (ii) IN THE EVENT
THE TRANSFEREE IS SUCH AN ENTITY SPECIFIED IN (A), (B), (C) OR (D) ABOVE, SUCH
ENTITY SHALL PROVIDE AN OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO
THE CERTIFICATE REGISTRAR AND THE DEPOSITOR THAT THE PURCHASE OR HOLDING OF THE
CERTIFICATES BY OR ON BEHALF OF A PLAN WILL NOT CONSTITUTE OR RESULT IN A
"PROHIBITED TRANSACTION" WITHIN THE MEANING OF SECTION 406 OR 407 OF ERISA OR
SECTION 4975 OF THE CODE, AND WILL NOT SUBJECT THE MASTER SERVICER, THE SPECIAL
SERVICER, THE DEPOSITOR, THE TRUSTEE, THE CERTIFICATE REGISTRAR, THE EXTENSION
ADVISER OR THE UNDERWRITER TO ANY OBLIGATION OR LIABILITY UNDER ERISA OR SECTION
4975 OF THE CODE.
THIS CERTIFICATE IS A "RESIDUAL INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT
CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G(A)(2) AND
860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED. EACH TRANSFEREE OF THIS
CERTIFICATE, BY ACCEPTANCE HEREOF, IS DEEMED TO HAVE ACCEPTED THIS CERTIFICATE
SUBJECT TO CERTAIN RESTRICTIONS ON TRANSFERABILITY, AS SET FORTH IN SECTION 5.02
OF THE POOLING AND SERVICING AGREEMENT.
<TABLE>
<CAPTION>
<S> <C>
PERCENTAGE INTEREST EVIDENCED BY THIS APPROXIMATE AGGREGATE SCHEDULED PRINCIPAL BALANCE
CERTIFICATE: 100% OF THE MORTGAGE LOANS AFTER DEDUCTING PAYMENTS DUE
AND PREPAYMENTS RECEIVED ON OR BEFORE CUT-OFF DATE:
DATE OF POOLING AND SERVICING AGREEMENT: $322,639,635
AS OF MAY 1, 1996
MASTER SERVICER: AMRESCO MANAGEMENT, INC.
CUT-OFF DATE: MAY 1, 1996, EXCEPT AS
DESCRIBED IN THE POOLING AND SERVICING SPECIAL SERVICER: AMRESCO MANAGEMENT, INC.
AGREEMENT
TRUSTEE: THE CHASE MANHATTAN BANK, N.A.
CLOSING DATE: MAY 16, 1996
REMIC ADMINISTRATOR: NATIONSBANC MORTGAGE CAPITAL
FIRST DISTRIBUTION DATE: CORPORATION
JUNE 20, 1996
CERTIFICATE NO.: R-1
CLASS R PERCENTAGE INTEREST: 100%
</TABLE>
<PAGE>
CLASS R CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of fixed rate commercial and multifamily mortgage loans (the "Mortgage
Loans"), all payments on or collections in respect of the Mortgage Loans due
after the Cut-Off Date, all REO Properties and revenues received in respect
thereof, the mortgagee's rights under the Insurance Policies, any Assignment of
Leases, and any guaranties, escrow accounts or other collateral as security for
the Mortgage Loans, and such amounts as shall from time to time be held in the
Certificate Account, the Distribution Accounts, and the REO Accounts, formed and
sold by
NATIONSLINK FUNDING CORPORATION
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN NATIONSLINK
FUNDING CORPORATION, THE MASTER SERVICER, THE SPECIAL SERVICER, THE TRUSTEE, THE
REMIC ADMINISTRATOR OR ANY OF THEIR AFFILIATES. NEITHER THIS CERTIFICATE NOR THE
UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE
UNITED STATES.
THIS CERTIFIES THAT NATIONSLINK FUNDING CORPORATION
is the registered owner of the interest evidenced by this Certificate in the
Class R Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of May 1, 1996 (the "Pooling and Servicing
Agreement"), among NationsLink Funding Corporation (hereinafter called the
"Depositor", which term includes any successor entity under the Pooling and
Servicing Agreement), the Trustee, the Special Servicer, the Master Servicer and
the REMIC Administrator. A summary of certain of the pertinent provisions of the
Pooling and Servicing Agreement is set forth hereafter. To the extent not
defined herein, the capitalized terms used herein shall have the meanings
assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the Percentage Interest
specified on the face hereof. The Certificates are designated as the NationsLink
Funding Corporation, Commercial Mortgage Pass-Through Certificates, Series
1996-1 and are issued in fourteen Classes as specifically set forth in the
Pooling and Servicing Agreement. The Certificates will evidence in the aggregate
100% of the beneficial ownership of the Trust Fund.
This Certificate does not purport to summarize the Pooling and Servicing
Agreement and reference is made to that agreement for information with respect
to the interests, rights, benefits, obligations, proceeds, and duties evidenced
hereby and the rights, duties and obligations of the Trustee. This Certificate
is issued under and is subject to the terms, provisions and conditions of the
Pooling and Servicing Agreement, to which Pooling and Servicing Agreement, as
amended from time to time, the Certificateholder by virtue of the acceptance
hereof assents and by which the Certificateholder is bound. In the case of any
conflict between terms specified in this Certificate and terms specified in the
Pooling and Servicing Agreement, the terms of the Pooling and Servicing
Agreement shall govern.
- ----------
4 If this Certificate represents a Book-Entry Certificate, its Denomination
shall be set forth on Schedule A attached hereto.
5 If this Certificate represents a Definitive Certificate, the Denomination
shall be specified on the face hereof.
This Certificate is a "residual interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income. The
Holder of the largest Percentage Interest in the Class R Certificates shall be
the "tax matters person" for the Upper-Tier REMIC pursuant to Treasury
Regulations Section 1.860F-4(d), and the REMIC Administrator is hereby
irrevocably designated and shall serve as attorney-in-fact and agent for any
such Person that is the "tax matters person".
Pursuant to the terms of the Pooling and Servicing Agreement,
distributions, if any, on this Certificate shall be made by the Trustee to the
extent and subject to the limitations set forth in the Pooling and Servicing
Agreement, on the Distribution Date to the Person in whose name this Certificate
is registered as of the related Record Date. All sums distributable on this
Certificate are payable in the coin or currency of the United States of America
as at the time of payment is legal tender for the payment of public and private
debts.
The Certificates are limited in right of payment to, among other things,
certain collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held in the name of the Trustee on behalf of the
holders of Certificates specified in the Pooling and Servicing Agreement and the
Master Servicer (with respect to the Certificate Account) or the Trustee (with
respect to the Distribution Accounts) will be authorized to make withdrawals
therefrom. Amounts on deposit in such accounts may be invested in Eligible
Investments. Interest or other income earned on funds in the Certificate Account
and Distribution Accounts will be paid to the Master Servicer as set forth in
the Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the master
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a Class of
Certificates shall be made on each Distribution Date (other than the final
distribution on any Certificate) to Certificateholders of record on the related
Record Date by check mailed to the address set forth therefor in the Certificate
Register or, provided that such Certificateholder (1) has provided the Trustee
with wire instructions in writing as least five Business Days prior to the
related Record Date and (2) is the Holder of Certificates with an original
Certificate Balance or Notional Amount, as applicable, of at least $5,000,000,
by wire transfer of immediately available funds to the account of such
Certificateholder at a bank or other entity having appropriate facilities
therefor. The final distribution on this Certificate shall be made in like
manner, but only upon presentment and surrender of this Certificate at the
Corporate Trust Office or such other location specified in the notice to
Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of the
failure of Certificateholders to tender their Certificates shall be set aside
and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(h) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Trustee may, directly or through an agent, take appropriate
steps to contact the remaining non-tendering Certificateholders concerning
surrender of their Certificates. The costs and expenses of holding such funds in
trust and of contacting such Certificateholders shall be paid out of such funds.
No interest shall accrue or be payable to any Certificateholder on any amount
held in trust as a result of such Certificateholder's failure to surrender its
Certificate(s) for final payment thereof in accordance with Section 4.01(h) of
the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registerable
in the Certificate Register only upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Trustee or at the
office of its transfer agent, duly endorsed by, or accompanied by an assignment
in the form below or other written instrument of transfer in form satisfactory
to the Certificate Registrar duly executed by the Holder hereof or such Holder's
attorney-in-fact duly authorized in writing, and thereupon one or more new
Certificates of the same Class in authorized Denominations will be issued to the
designated transferee or transferees.
Each Person who has or who acquires any Ownership Interest in a Class R
Certificate shall be deemed by the acceptance or acquisition of such Ownership
Interest to have agreed to be bound by the following provisions and to have
irrevocably authorized the Trustee under Section 5.02(d)(ii) of the Pooling and
Servicing Agreement to deliver payments to a Person other than such Person. The
rights of each Person acquiring any Ownership Interest in a Class R Certificate
are expressly subject to the following provisions: (A) No Person holding or
acquiring any Ownership Interest in a Class R Certificate shall be a
Disqualified Organization or agent thereof (including a nominee, middleman or
similar person) (an "Agent") or a Non-U.S. Person and shall promptly notify the
Master Servicer, the Trustee and the REMIC Administrator of any change or
impending change to such status; (B) In connection with any proposed Transfer of
any Ownership Interest in a Class R Certificate, the Certificate Registrar shall
require delivery to it, and no Transfer of any Class R Certificate shall be
registered until the Certificate Registrar receives, an affidavit substantially
in the form attached to the Pooling and Servicing Agreement as Exhibit D-1 (a
"Transfer Affidavit") from the proposed Transferee, in form and substance
satisfactory to the Certificate Registrar, representing and warranting, among
other things, that such Transferee is not a Disqualified Organization or Agent
thereof or a Non-U.S. Person, and that it has reviewed the provisions of Section
5.02(d) of the Pooling and Servicing Agreement and agrees to be bound by them;
(C) Notwithstanding the delivery of a Transfer Affidavit by a proposed
Transferee under clause (B) above, if the Certificate Registrar has actual
knowledge that the proposed Transferee is a Disqualified Organization, an Agent
thereof or a Non-U.S. Person, no Transfer of an Ownership Interest in a Class R
Certificate to such proposed Transferee shall be effected; and (D) Each Person
holding or acquiring any Ownership Interest in a Class R Certificate shall agree
(1) to require a Transfer Affidavit from any prospective Transferee to whom such
Person attempts to transfer its Ownership Interest in such Class R Certificate
and (2) not to transfer its Ownership Interest in such Class R Certificate
unless it provides to the Certificate Registrar a letter substantially in the
form attached to the Pooling and Servicing Agreement as Exhibit D-2 (a
"Transferor Letter") certifying that, among other things, it has no actual
knowledge that such prospective Transferee is a Disqualified Organization, an
Agent thereof or a Non-U.S. Person.
Subject to the terms of the Pooling and Servicing Agreement, the Class A
Certificates will be issued in book-entry form through the facilities of DTC in
Denominations of not less than $10,000 initial Certificate Balance and in
integral multiples of $1,000 in excess thereof, with one Certificate of such
Class evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class. Subject to the terms of the Pooling and
Servicing Agreement, the Class IO Certificates will be issued in book-entry form
through the facilities of DTC in Denominations of not less than $1,000,000
initial Notional Amount and in integral multiples of $1,000 in excess thereof,
with one Certificate of such Class evidencing an additional amount equal to the
remainder of the initial Notional Amount of such Class. Subject to the terms of
the Pooling and Servicing Agreement, the Class B, Class C, Class D, Class E,
Class F, Class G, Class H and Class UR Certificates will be issued in book-entry
form through the facilities of DTC in Denominations of $250,000 initial
Certificate Balance, and in integral multiples of $1,000 in excess thereof, with
one Certificate of each such Class evidencing an additional amount equal to the
remainder of the initial Certificate Balance of such Class. The Class R and
Class LR Certificates will be issued in fully registered, certificated form, in
Denominations representing Percentage Interests of not less than 20%.
No fee or service charge shall be imposed by the Certificate Registrar for
its services in respect of any registration of transfer or exchange referred to
in Section 5.02 of the Pooling and Servicing Agreement other than for transfers
to Institutional Accredited Investors as provided in Section 5.02(h) thereof. In
connection with any transfer to an Institutional Accredited Investor, the
Transferor shall reimburse the Trust for any costs (including the cost of the
Certificate Registrar's counsel's review of the documents and any legal
opinions, submitted by the transferor or transferee to the Certificate Registrar
as provided in Section 5.02 of the Pooling and Servicing Agreement) incurred by
the Certificate Registrar in connection with such transfer. The Certificate
Registrar may require payment by each transferor of a sum sufficient to cover
any tax, expense or other governmental charge payable in connection with any
such transfer or exchange.
The Depositor, the Trustee, the REMIC Administrator, the Master Servicer,
the Special Servicer, and the Certificate Registrar and any of their agents may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Master
Servicer, the Special Servicer, the REMIC Administrator, the Certificate
Registrar nor any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time by the
Depositor, the Master Servicer, the Special Servicer, the REMIC Administrator
and the Trustee, without the consent of any of the Certificateholders, to cure
any ambiguity, to correct or supplement any provisions herein or therein that
may be inconsistent with any other provisions herein or therein or to correct
any error; to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of the
Upper-Tier REMIC or the Lower-Tier REMIC to avoid or minimize the imposition of
any tax, provided, however, an Opinion of Counsel is obtained to the effect that
such action shall not adversely affect in any material respect the interest of
any Certificateholder and such action is necessary or desirable to avoid such
tax and such action will not result in the withdrawal, downgrade or
qualification of the then-current rating by any Rating Agency, as evidenced by a
letter from such Rating Agency to such effect; to change the timing and/or
nature of deposits into the Certificate Account or Distribution Accounts or to
change the name in which the Certificate Account is maintained, provided,
however, that the P&I Advance Date shall not be later than the related
Distribution Date, an Opinion of Counsel is obtained to the effect that such
action shall not adversely affect in any material respect the interest of any
Certificateholder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating by any Rating Agency, as
evidenced by a letter from such Rating Agency to such effect; to modify,
eliminate or add to the provisions of Section 5.02(d) of the Pooling and
Servicing Agreement or any other provision thereof restricting transfer of the
Residual Certificates by virtue of their being the REMIC "residual interests,"
provided that such change shall not result in the withdrawal, downgrade or
qualification of the then-current rating assigned to any Class of Certificates,
as evidenced by a letter from each Rating Agency to such effect, and such change
shall not, as evidenced by an Opinion of Counsel, cause either the Trust Fund,
the Lower-Tier REMIC, the Upper-Tier REMIC or any of the Certificateholders
(other than the Transferor) to be subject to a federal tax caused by a Transfer
to a Person that is a Disqualified Organization or a Non-U.S. Person; and to
make any other provisions with respect to matters or questions arising under the
Pooling and Servicing Agreement which shall not be materially inconsistent with
the provisions of the Pooling and Servicing Agreement, provided, however, that
such action shall not, as evidenced by an Opinion of Counsel, adversely affect
in any material respect the interest of any Certificateholder not consenting
thereto.
The Pooling and Servicing Agreement may also be amended from time to time
by the Depositor, the Master Servicer, the Special Servicer, the REMIC
Administrator and the Trustee with the consent of the Holders of Certificates
representing not less than 66% of the aggregate Percentage Interests of each
Class of Certificates affected by the amendment for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Pooling and Servicing Agreement or of modifying in any manner the rights of
the Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate
without the consent of such Certificateholder; or
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment,
without the consent of the Holders of all Certificates of such Class
then outstanding.
No amendment shall be made to the Pooling and Servicing Agreement unless
the Trustee shall have received an Opinion of Counsel that such amendment will
not cause either the Upper-Tier REMIC or the Lower-Tier REMIC to fail to qualify
as a REMIC or result in the imposition of a tax on either the Upper-Tier REMIC,
the Lower-Tier REMIC or the Trust Fund.
Any of the Master Servicer or the Depositor will have the option, upon 60
days' prior notice given to the Trustee, each of the other parties to the
Pooling and Servicing Agreement and the Rating Agencies, which notice the
Trustee is required to forward to Certificateholders in the manner set forth in
the Pooling and Servicing Agreement, to purchase all, but not less than all, of
the Mortgage Loans and all property acquired in respect of any Mortgage Loan
remaining in the Trust Fund, and thereby effect termination of the Trust Fund
and early retirement of the then outstanding Certificates, on any Distribution
Date on which the aggregate Stated Principal Balances of the Mortgage Loans and
any REO Loans remaining in the Trust Fund is reduced to less than 5% of the
aggregate Cut-Off Date Principal Balance of all the Mortgage Loans.
The obligations created by the Pooling and Servicing Agreement and the
Trust Fund created thereby (other than the obligation of the Trustee to make
payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Joseph P. Kennedy, the late Ambassador of the United States to
the Court of St. James, living on the date hereof.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Trustee has executed this Certificate on behalf of the
Trust Fund as Trustee under the Pooling and Servicing Agreement and makes no
representation or warranty as to any of the statements contained herein or the
validity or sufficiency of the Certificates or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE CONSTRUED
IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK WITHOUT
REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed under this official seal.
THE CHASE MANHATTAN BANK, N.A., not
in its individual capacity but
solely as Trustee under the Pooling
and Servicing Agreement.
By: ___________________________
AUTHORIZED OFFICER
Dated: May 16, 1996
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS R CERTIFICATES REFERRED TO IN THE WITHIN-MENTIONED
POOLING AND SERVICING AGREEMENT.
THE CHASE MANHATTAN BANK, N.A.,
CERTIFICATE REGISTRAR
By: ___________________________
AUTHORIZED SIGNATORY
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights
of Under Uniform Gifts to
Minors survivorship and not
as tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
- --------------------------------------------------------------------------------
(Please insert Social Security or other identifying number of Assignee)
- --------------------------------------------------------------------------------
(Please print or typewrite name and address of assignee)
- --------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
--------------------------------------------------------
Dated:-------------- NOTICE: The signature to this assignment must
correspond with the name as written upon the face of
this Certificate in every particular without alteration
or enlargement or any change whatever.
- --------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
<PAGE>
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to _________________________________ for the account of
__________________________________ account number _______________ or, if mailed
by check, to _______________________________________. Statements should be
mailed to _______________________________________________________________. This
information is provided by assignee named above, or
______________________________ , as its agent.
<PAGE>
EXHIBIT A-14
NATIONSLINK FUNDING CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 1996-1, CLASS LR
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER THIS
CERTIFICATE NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, REGISTRATION UNDER THE SECURITIES ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF RULE 501 (a)(1), (2), (3) OR (7) OF REGULATION D
UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM THE REGISTRATION
REQUIREMENTS UNDER THE SECURITIES ACT, OR (D) PURSUANT TO ANOTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT IN
EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY THE TRANSFEROR TO
THE TRUSTEE OF A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE LAST PAGE
OF THIS CERTIFICATE.
THE INITIAL INVESTOR IN THIS CERTIFICATE, AND EACH SUBSEQUENT PURCHASER OF THIS
CERTIFICATE, BY PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO
HAVE AGREED TO COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT. A TRANSFEREE IS ALSO REQUIRED TO DELIVER AN
INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY IN THE FORM OF EXHIBIT C TO THE
POOLING AND SERVICING AGREEMENT IF SUCH TRANSFEREE IS A QUALIFIED INSTITUTIONAL
BUYER OR AN ACCREDITED INSTITUTIONAL INVESTOR, AND MAY ALSO BE REQUIRED TO
DELIVER AN OPINION OF COUNSEL IF SUCH TRANSFEREE IS NOT A QUALIFIED
INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A.
THIS CERTIFICATE MAY NOT BE PURCHASED BY OR TRANSFERRED TO A PERSON WHICH IS
(A)(1) AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY
PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
("ERISA"), OR (2) A PLAN SUBJECT TO SECTION 4975 OF THE CODE, OR A GOVERNMENTAL
PLAN AS DEFINED IN SECTION 3(32) OF ERISA, SUBJECT TO ANY FEDERAL, STATE OR
LOCAL LAW WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING PROVISIONS OF
ERISA OR THE CODE (COLLECTIVELY, A "PLAN"), OR (B) A COLLECTIVE INVESTMENT FUND
IN WHICH SUCH PLANS ARE INVESTED, OR (C) AN INSURANCE COMPANY USING ASSETS OF
SEPARATE ACCOUNTS OR GENERAL ACCOUNTS WHICH INCLUDE ASSETS OF PLANS (OR WHICH
ARE DEEMED PURSUANT TO ERISA OR ANY SIMILAR LAW TO INCLUDE ASSETS OF PLANS), OR
(D) A PERSON OR ENTITY ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF
SUCH PLAN TO ACQUIRE SUCH CERTIFICATE UNLESS IT IS PURCHASING THE CERTIFICATE
WITH THE ASSETS OF AN INSURANCE COMPANY GENERAL ACCOUNT AND (1) THE EXEMPTIVE
RELIEF AFFORDED UNDER SECTION III OF PROHIBITED TRANSACTION CLASS EXEMPTION
95-60 IS AVAILABLE FOR THE PURCHASE AND HOLDING OF THE CERTIFICATE BY SUCH
PURCHASER OR (2) THE PURCHASE WOULD NOT CONSTITUTE A "PROHIBITED TRANSACTION"
WITHIN THE MEANING OF SECTION 406 OR 407 OF ERISA, SECTION 4975 OF THE CODE OR A
MATERIALLY SIMILAR CHARACTERIZATION UNDER ANY SIMILAR LAW. EACH CERTIFICATE
OWNER SHALL BE DEEMED TO REPRESENT THAT IT IS NOT A PERSON SPECIFIED IN CLAUSES
(A), (B), (C), OR (D) ABOVE. TRANSFEREES OF THIS CERTIFICATE TAKING DELIVERY IN
CERTIFICATED FORM SHALL BE REQUIRED EITHER (i) TO DELIVER A LETTER IN THE FORM
OF EXHIBIT G TO THE POOLING AND SERVICING AGREEMENT TO THE EFFECT THAT IT IS NOT
A PERSON SPECIFIED IN CLAUSES (A), (B), (C) OR (D) ABOVE, OR (ii) IN THE EVENT
THE TRANSFEREE IS SUCH AN ENTITY SPECIFIED IN (A), (B), (C) OR (D) ABOVE, SUCH
ENTITY SHALL PROVIDE AN OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO
THE CERTIFICATE REGISTRAR AND THE DEPOSITOR THAT THE PURCHASE OR HOLDING OF THE
CERTIFICATES BY OR ON BEHALF OF A PLAN WILL NOT CONSTITUTE OR RESULT IN A
"PROHIBITED TRANSACTION" WITHIN THE MEANING OF SECTION 406 OR 407 OF ERISA OR
SECTION 4975 OF THE CODE, AND WILL NOT SUBJECT THE MASTER SERVICER, THE SPECIAL
SERVICER, THE DEPOSITOR, THE TRUSTEE, THE CERTIFICATE REGISTRAR, THE EXTENSION
ADVISER OR THE UNDERWRITER TO ANY OBLIGATION OR LIABILITY UNDER ERISA OR SECTION
4975 OF THE CODE.
THIS CERTIFICATE IS A "RESIDUAL INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT
CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G(A)(2) AND
860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED. EACH TRANSFEREE OF THIS
CERTIFICATE, BY ACCEPTANCE HEREOF, IS DEEMED TO HAVE ACCEPTED THIS CERTIFICATE
SUBJECT TO CERTAIN RESTRICTIONS ON TRANSFERABILITY, AS SET FORTH IN SECTION 5.02
OF THE POOLING AND SERVICING AGREEMENT.
<PAGE>
<TABLE>
<CAPTION>
<S> <C>
PERCENTAGE INTEREST EVIDENCED BY THIS APPROXIMATE AGGREGATE SCHEDULED PRINCIPAL BALANCE
CERTIFICATE: 100% OF THE MORTGAGE LOANS AFTER DEDUCTING PAYMENTS DUE
AND PREPAYMENTS RECEIVED ON OR BEFORE CUT-OFF DATE:
DATE OF POOLING AND SERVICING AGREEMENT: AS $322,639,635
OF MAY 1, 1996
MASTER SERVICER: AMRESCO MANAGEMENT, INC.
CUT-OFF DATE: MAY 1, 1996, EXCEPT AS
DESCRIBED IN THE POOLING AND SERVICING SPECIAL SERVICER: AMRESCO MANAGEMENT, INC.
AGREEMENT
TRUSTEE: THE CHASE MANHATTAN BANK, N.A.
CLOSING DATE: MAY 16, 1996
REMIC ADMINISTRATOR: NATIONSBANC MORTGAGE CAPITAL
FIRST DISTRIBUTION DATE: CORPORATION
JUNE 20, 1996
CERTIFICATE NO.: LR-1
CLASS LR PERCENTAGE INTEREST: 100%
</TABLE>
<PAGE>
CLASS LR CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of fixed rate commercial and multifamily mortgage loans (the "Mortgage
Loans"), all payments on or collections in respect of the Mortgage Loans due
after the Cut-Off Date, all REO Properties and revenues received in respect
thereof, the mortgagee's rights under the Insurance Policies, any Assignment of
Leases, and any guaranties, escrow accounts or other collateral as security for
the Mortgage Loans, and such amounts as shall from time to time be held in the
Certificate Account, the Distribution Accounts, and the REO Accounts, formed and
sold by
NATIONSLINK FUNDING CORPORATION
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN NATIONSLINK
FUNDING CORPORATION, THE MASTER SERVICER, THE SPECIAL SERVICER, THE TRUSTEE, THE
REMIC ADMINISTRATOR OR ANY OF THEIR AFFILIATES. NEITHER THIS CERTIFICATE NOR THE
UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE
UNITED STATES.
THIS CERTIFIES THAT NATIONSLINK FUNDING CORPORATION
is the registered owner of the interest evidenced by this Certificate in the
Class LR Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of May 1, 1996 (the "Pooling and Servicing
Agreement"), among NationsLink Funding Corporation (hereinafter called the
"Depositor", which term includes any successor entity under the Pooling and
Servicing Agreement), the Trustee, the Special Servicer, the Master Servicer and
the REMIC Administrator. A summary of certain of the pertinent provisions of the
Pooling and Servicing Agreement is set forth hereafter. To the extent not
defined herein, the capitalized terms used herein shall have the meanings
assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the Percentage Interest
specified on the face hereof. The Certificates are designated as the NationsLink
Funding Corporation, Commercial Mortgage Pass-Through Certificates, Series
1996-1 and are issued in fourteen Classes as specifically set forth in the
Pooling and Servicing Agreement. The Certificates will evidence in the aggregate
100% of the beneficial ownership of the Trust Fund.
This Certificate does not purport to summarize the Pooling and Servicing
Agreement and reference is made to that agreement for information with respect
to the interests, rights, benefits, obligations, proceeds, and duties evidenced
hereby and the rights, duties and obligations of the Trustee. This Certificate
is issued under and is subject to the terms, provisions and conditions of the
Pooling and Servicing Agreement, to which Pooling and Servicing Agreement, as
amended from time to time, the Certificateholder by virtue of the acceptance
hereof assents and by which the Certificateholder is bound. In the case of any
conflict between terms specified in this Certificate and terms specified in the
Pooling and Servicing Agreement, the terms of the Pooling and Servicing
Agreement shall govern.
- ----------
4 If this Certificate represents a Book-Entry Certificate, its Denomination
shall be set forth on Schedule A attached hereto.
5 If this Certificate represents a Definitive Certificate, the Denomination
shall be specified on the face hereof.
This Certificate is a "residual interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income. The
Holder of the largest Percentage Interest in the Class LR Certificates shall be
the "tax matters person" for the Lower-Tier REMIC pursuant to Treasury
Regulations Section 1.860F-4(d), and the REMIC Administrator is hereby
irrevocably designated and shall serve as attorney-in-fact and agent for any
such Person that is the "tax matters person".
Pursuant to the terms of the Pooling and Servicing Agreement,
distributions, if any, on this Certificate shall be made by the Trustee to the
extent and subject to the limitations set forth in the Pooling and Servicing
Agreement, on the Distribution Date to the Person in whose name this Certificate
is registered as of the related Record Date. All sums distributable on this
Certificate are payable in the coin or currency of the United States of America
as at the time of payment is legal tender for the payment of public and private
debts.
The Certificates are limited in right of payment to, among other things,
certain collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held in the name of the Trustee on behalf of the
holders of Certificates specified in the Pooling and Servicing Agreement and the
Master Servicer (with respect to the Certificate Account) or the Trustee (with
respect to the Distribution Accounts) will be authorized to make withdrawals
therefrom. Amounts on deposit in such accounts may be invested in Eligible
Investments. Interest or other income earned on funds in the Certificate Account
and Distribution Accounts will be paid to the Master Servicer as set forth in
the Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the master
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a Class of
Certificates shall be made on each Distribution Date (other than the final
distribution on any Certificate) to Certificateholders of record on the related
Record Date by check mailed to the address set forth therefor in the Certificate
Register or, provided that such Certificateholder (1) has provided the Trustee
with wire instructions in writing as least five Business Days prior to the
related Record Date and (2) is the Holder of Certificates with an original
Certificate Balance or Notional Amount, as applicable, of at least $5,000,000,
by wire transfer of immediately available funds to the account of such
Certificateholder at a bank or other entity having appropriate facilities
therefor. The final distribution on this Certificate shall be made in like
manner, but only upon presentment and surrender of this Certificate at the
Corporate Trust Office or such other location specified in the notice to
Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of the
failure of Certificateholders to tender their Certificates shall be set aside
and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(h) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Trustee may, directly or through an agent, take appropriate
steps to contact the remaining non-tendering Certificateholders concerning
surrender of their Certificates. The costs and expenses of holding such funds in
trust and of contacting such Certificateholders shall be paid out of such funds.
No interest shall accrue or be payable to any Certificateholder on any amount
held in trust as a result of such Certificateholder's failure to surrender its
Certificate(s) for final payment thereof in accordance with Section 4.01(h) of
the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registerable
in the Certificate Register only upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Trustee or at the
office of its transfer agent, duly endorsed by, or accompanied by an assignment
in the form below or other written instrument of transfer in form satisfactory
to the Certificate Registrar duly executed by the Holder hereof or such Holder's
attorney-in-fact duly authorized in writing, and thereupon one or more new
Certificates of the same Class in authorized Denominations will be issued to the
designated transferee or transferees.
Each Person who has or who acquires any Ownership Interest in a Class LR
Certificate shall be deemed by the acceptance or acquisition of such Ownership
Interest to have agreed to be bound by the following provisions and to have
irrevocably authorized the Trustee under Section 5.02(d)(ii) of the Pooling and
Servicing Agreement to deliver payments to a Person other than such Person. The
rights of each Person acquiring any Ownership Interest in a Class LR Certificate
are expressly subject to the following provisions: (A) No Person holding or
acquiring any Ownership Interest in a Class LR Certificate shall be a
Disqualified Organization or agent thereof (including a nominee, middleman or
similar person) (an "Agent") or a Non-U.S. Person and shall promptly notify the
Master Servicer, the Trustee and the REMIC Administrator of any change or
impending change to such status; (B) In connection with any proposed Transfer of
any Ownership Interest in a Class LR Certificate, the Certificate Registrar
shall require delivery to it, and no Transfer of any Class LR Certificate shall
be registered until the Certificate Registrar receives, an affidavit
substantially in the form attached to the Pooling and Servicing Agreement as
Exhibit D-1 (a "Transfer Affidavit") from the proposed Transferee, in form and
substance satisfactory to the Certificate Registrar, representing and
warranting, among other things, that such Transferee is not a Disqualified
Organization or Agent thereof or a Non-U.S. Person, and that it has reviewed the
provisions of Section 5.02(d) of the Pooling and Servicing Agreement and agrees
to be bound by them; (C) Notwithstanding the delivery of a Transfer Affidavit by
a proposed Transferee under clause (B) above, if the Certificate Registrar has
actual knowledge that the proposed Transferee is a Disqualified Organization, an
Agent thereof or a Non-U.S. Person, no Transfer of an Ownership Interest in a
Class LR Certificate to such proposed Transferee shall be effected; and (D) Each
Person holding or acquiring any Ownership Interest in a Class LR Certificate
shall agree (1) to require a Transfer Affidavit from any prospective Transferee
to whom such Person attempts to transfer its Ownership Interest in such Class LR
Certificate and (2) not to transfer its Ownership Interest in such Class LR
Certificate unless it provides to the Certificate Registrar a letter
substantially in the form attached to the Pooling and Servicing Agreement as
Exhibit D-2 (a "Transferor Letter") certifying that, among other things, it has
no actual knowledge that such prospective Transferee is a Disqualified
Organization, an Agent thereof or a Non-U.S. Person.
Subject to the terms of the Pooling and Servicing Agreement, the Class A
Certificates will be issued in book-entry form through the facilities of DTC in
Denominations of not less than $10,000 initial Certificate Balance and in
integral multiples of $1,000 in excess thereof, with one Certificate of such
Class evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class. Subject to the terms of the Pooling and
Servicing Agreement, the Class IO Certificates will be issued in book-entry form
through the facilities of DTC in Denominations of not less than $1,000,000
initial Notional Amount and in integral multiples of $1,000 in excess thereof,
with one Certificate of such Class evidencing an additional amount equal to the
remainder of the initial Notional Amount of such Class. Subject to the terms of
the Pooling and Servicing Agreement, the Class B, Class C, Class D, Class E,
Class F, Class G, Class H and Class UR Certificates will be issued in book-entry
form through the facilities of DTC in Denominations of $250,000 initial
Certificate Balance, and in integral multiples of $1,000 in excess thereof, with
one Certificate of each such Class evidencing an additional amount equal to the
remainder of the initial Certificate Balance of such Class. The Class R and
Class LR Certificates will be issued in fully registered, certificated form, in
Denominations representing Percentage Interests of not less than 20%.
No fee or service charge shall be imposed by the Certificate Registrar for
its services in respect of any registration of transfer or exchange referred to
in Section 5.02 of the Pooling and Servicing Agreement other than for transfers
to Institutional Accredited Investors as provided in Section 5.02(h) thereof. In
connection with any transfer to an Institutional Accredited Investor, the
Transferor shall reimburse the Trust for any costs (including the cost of the
Certificate Registrar's counsel's review of the documents and any legal
opinions, submitted by the transferor or transferee to the Certificate Registrar
as provided in Section 5.02 of the Pooling and Servicing Agreement) incurred by
the Certificate Registrar in connection with such transfer. The Certificate
Registrar may require payment by each transferor of a sum sufficient to cover
any tax, expense or other governmental charge payable in connection with any
such transfer or exchange.
The Depositor, the Trustee, the REMIC Administrator, the Master Servicer,
the Special Servicer, and the Certificate Registrar and any of their agents may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Master
Servicer, the Special Servicer, the REMIC Administrator, the Certificate
Registrar nor any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time by the
Depositor, the Master Servicer, the Special Servicer, the REMIC Administrator
and the Trustee, without the consent of any of the Certificateholders, to cure
any ambiguity, to correct or supplement any provisions herein or therein that
may be inconsistent with any other provisions herein or therein or to correct
any error; to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of the
Upper-Tier REMIC or the Lower-Tier REMIC to avoid or minimize the imposition of
any tax, provided, however, an Opinion of Counsel is obtained to the effect that
such action shall not adversely affect in any material respect the interest of
any Certificateholder and such action is necessary or desirable to avoid such
tax and such action will not result in the withdrawal, downgrade or
qualification of the then-current rating by any Rating Agency, as evidenced by a
letter from such Rating Agency to such effect; to change the timing and/or
nature of deposits into the Certificate Account or Distribution Accounts or to
change the name in which the Certificate Account is maintained, provided,
however, that the P&I Advance Date shall not be later than the related
Distribution Date, an Opinion of Counsel is obtained to the effect that such
action shall not adversely affect in any material respect the interest of any
Certificateholder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating by any Rating Agency, as
evidenced by a letter from such Rating Agency to such effect; to modify,
eliminate or add to the provisions of Section 5.02(d) of the Pooling and
Servicing Agreement or any other provision thereof restricting transfer of the
Residual Certificates by virtue of their being the REMIC "residual interests,"
provided that such change shall not result in the withdrawal, downgrade or
qualification of the then-current rating assigned to any Class of Certificates,
as evidenced by a letter from each Rating Agency to such effect, and such change
shall not, as evidenced by an Opinion of Counsel, cause either the Trust Fund,
the Lower-Tier REMIC, the Upper-Tier REMIC or any of the Certificateholders
(other than the Transferor) to be subject to a federal tax caused by a Transfer
to a Person that is a Disqualified Organization or a Non-U.S. Person; and to
make any other provisions with respect to matters or questions arising under the
Pooling and Servicing Agreement which shall not be materially inconsistent with
the provisions of the Pooling and Servicing Agreement, provided, however, that
such action shall not, as evidenced by an Opinion of Counsel, adversely affect
in any material respect the interest of any Certificateholder not consenting
thereto.
The Pooling and Servicing Agreement may also be amended from time to time
by the Depositor, the Master Servicer, the Special Servicer, the REMIC
Administrator and the Trustee with the consent of the Holders of Certificates
representing not less than 66% of the aggregate Percentage Interests of each
Class of Certificates affected by the amendment for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Pooling and Servicing Agreement or of modifying in any manner the rights of
the Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate
without the consent of such Certificateholder; or
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment,
without the consent of the Holders of all Certificates of such Class
then outstanding.
No amendment shall be made to the Pooling and Servicing Agreement unless
the Trustee shall have received an Opinion of Counsel that such amendment will
not cause either the Upper-Tier REMIC or the Lower-Tier REMIC to fail to qualify
as a REMIC or result in the imposition of a tax on either the Upper-Tier REMIC,
the Lower-Tier REMIC or the Trust Fund.
Any of the Master Servicer or the Depositor will have the option, upon 60
days' prior notice given to the Trustee, each of the other parties to the
Pooling and Servicing Agreement and the Rating Agencies, which notice the
Trustee is required to forward to Certificateholders in the manner set forth in
the Pooling and Servicing Agreement, to purchase all, but not less than all, of
the Mortgage Loans and all property acquired in respect of any Mortgage Loan
remaining in the Trust Fund, and thereby effect termination of the Trust Fund
and early retirement of the then outstanding Certificates, on any Distribution
Date on which the aggregate Stated Principal Balances of the Mortgage Loans and
any REO Loans remaining in the Trust Fund is reduced to less than 5% of the
aggregate Cut-Off Date Principal Balance of all the Mortgage Loans.
The obligations created by the Pooling and Servicing Agreement and the
Trust Fund created thereby (other than the obligation of the Trustee to make
payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Joseph P. Kennedy, the late Ambassador of the United States to
the Court of St. James, living on the date hereof.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Trustee has executed this Certificate on behalf of the
Trust Fund as Trustee under the Pooling and Servicing Agreement and makes no
representation or warranty as to any of the statements contained herein or the
validity or sufficiency of the Certificates or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE CONSTRUED
IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK WITHOUT
REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed under this official seal.
THE CHASE MANHATTAN BANK, N.A., not
in its individual capacity but
solely as Trustee under the Pooling
and Servicing Agreement.
By: ___________________________
AUTHORIZED OFFICER
Dated: May 16, 1996
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS LR CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
THE CHASE MANHATTAN BANK, N.A.,
CERTIFICATE REGISTRAR
By: ___________________________
AUTHORIZED SIGNATORY
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights
of Under Uniform Gifts to
Minors survivorship and not
as tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
- --------------------------------------------------------------------------------
(Please insert Social Security or other identifying number of Assignee)
- --------------------------------------------------------------------------------
(Please print or typewrite name and address of assignee)
- --------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
--------------------------------------------------------
Dated:-------------- NOTICE: The signature to this assignment must
correspond with the name as written upon the face of
this Certificate in every particular without alteration
or enlargement or any change whatever.
- --------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
<PAGE>
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to _________________________________ for the account of
__________________________________ account number _______________ or, if mailed
by check, to _______________________________________. Statements should be
mailed to _______________________________________________________________. This
information is provided by assignee named above, or
______________________________ , as its agent.
<PAGE>
EXHIBIT B
MORTGAGE LOAN SCHEDULE
EXHIBIT B
---------
<TABLE>
<CAPTION>
Net
NMCC Mortgage Mortgage Original
Loan Zip Interest as of Principal
Number Borrower Name Property Address City State Code Rate Cut-Off Balance
- ------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
95111 River Park Limited Partnership US 270 and Tanner Road Malvern AR 72104 8.439% 8.279% $5,800,000
95112 ASG MacArthur, Ltd. 1111 and 1221 West Irving TX 75062 9.420% 9.260% $3,000,000
Airport Freeway
95115 Lake Worth Center, Ltd. 6336 Lake Worth Boulevard Lake Worth TX 76135 8.593% 8.433% $3,200,000
95118 Festival Associates 7339 Six Forks Road Raleigh NC 27609 8.480% 8.320% $6,145,000
95127 Girard Associates Partnership 200-220 Girard Street GaithersburgMD 20877 8.290% 8.130% $5,000,000
95116 PBSC, LLC 3200-3245 PA Avenue Washington DC 20020 8.640% 8.480% $2,400,000
95113 Bay Ridge Plaza, L.L.C. 889 - 895 Bay Ridge Avenue Annapolis MD 21403 8.833% 8.673% $3,700,000
951113 Colleyville Monticello Partners, 5005 Colleyville Boulevard Colleyville TX 76034 8.340% 8.180% $1,350,000
Ltd.
951218 Skyway BC, Inc. 22nd Avenue and 31st St. FL 33712 7.990% 7.830% $2,700,000
Street Petersburg
951112 Brauvin/Crown Point, LP 1205 N. Eastman Road Kingsport TN 37664 7.550% 7.390% $3,275,000
951124 BL Northshore, L.P. 1500-1600 Wildcat Drive Portland TX 78374 8.120% 7.960% $2,870,000
951115 Louise B. Mazza Family Trust 3500-3118 Connecticut Washington DC 20008 8.850% 8.590% $2,400,000
Avenue, N.W.
951116 Brookwood Strategic Partners Ltd. Jefferson Davis Hwy. Fredericks VA 22401 7.880% 7.670% $4,425,000
Partnership (Rte. 1) & Fall Hill Ave. burg
951110 Melrose Partnership 2400 Franklin Pike Nashville TN 37204 8.180% 8.020% $1,275,000
951117 Woodford Square Associates L.P. 701 North Battlefield Chesapeake VA 23320 7.970% 7.810% $4,275,000
Boulevard
951611 Eleven Hundred Connecticut 1100 Connecticut Ave., Washington DC 20036 6.980% 6.880% $3,500,000
Avenue, L.P. N.W.
951223 Central Ohio Associates 18 Allison Drive Shelby OH 44875 7.730% 7.420% $6,500,000
962127 La Place Center Limited 2101 Richland Road Beachwood OH 44122 8.300% 8.200% $10,583,853
Partnership
95131 Parkview Partnership 200 Nursing Home Lane Pikeville KY 40501 9.560% 9.400% $3,850,000
95142 Susquehanna Holdings Co. 300 Courtright Street Wilkes-BarrePA 18702 9.000% 8.840% $2,800,000
95149 Grace Personal Care Home of 8847 Hospital Drive DouglasvilleGA 30134 9.190% 9.030% $1,600,000
Douglasville
951419 Oak Grove of Rutherfordton Ltd. Route 8, Box 7 RutherfordtoNC 28752 8.870% 8.710% $3,000,000
Partnership
951314 Hickory Creek Nursing Center, Inc. 3421 Pinnacle Road Moraine OH 45418 8.630% 8.470% $3,500,000
2337930 Iroquois LLC 111 Old Hickory Boulevard Nashville TN 37221 8.610% 8.400% $9,100,000
S.W.
2316021 Sanaga Development, Inc. 5333 East Thomas Road Phoenix AZ 85018 8.460% 8.220% $2,600,000
4217009 Barrington Crossing, LP 1301 Park Place Boulevard Hurst TX 76053 8.500% 8.260% $3,550,000
2314027 Statesman Jamestown Partners, Ltd. 4320 Bull Creek Road Austin TX 78731 8.510% 8.220% $2,750,000
2305732 Royal Oaks LLC 206 Stratton Blvd. Ashland TN 37015 8.710% 8.420% $517,000
City
2311228 Sundial Apartments, Inc. 55515 Alabama El Paso TX 79904 8.640% 8.350% $1,550,000
2302633 Commordore, LLC 2308 21st Avenue South Nashville TN 37212 8.710% 8.420% $389,000
2304634 Studio Company 801 Hillview Heights Nashville TN 37221 8.710% 8.420% $483,000
2212835 Woodlands Holdings, Inc. 10010 Broadway San Antonio TX 78217 8.430% 8.140% $1,925,000
1320040 Preston Chase Associates, LP 1034 Franklin Road Marietta GA 30067 8.460% 8.170% $4,300,000
4319608 La Verde-Richland Investors, 1201-A Del Mar Court Richland WA 99352 8.570% 8.330% $4,500,000
Calif. LP
4313010 NAP / Springman Fund IV 1001 South Dahlia St. and Glendale CO 80222 8.654% 8.364% $1,900,000
4747 East Mississippi Ave.
4208020 Fort Worth Hidden Oaks 1800 Barbara Road River Oaks TX 76114 8.760% 8.470% $1,043,000
Apartments, LP
4203621 Fort Worth River Oaks Apartments, 1904 Roberts Cut Off Fort Worth TX 76114 8.760% 8.470% $457,000
LP
4215204 Sherman Westlake Village 1800 West Washington Sherman TX 75092 10.133% 9.843% $1,900,000
Associates, LP Street
4232122 Sundancer Investors, LP 4250 East 29th Street Tucson AZ 85711 8.380% 8.090% $2,600,000
4215825 Park Glen Associates, L.P. 7425 La Vista Drive Dallas TX 75214 8.300% 8.060% $2,775,000
4211423 Groton Apartments Associates LP 39 Broad Street Extension Groton CT 06340 8.614% 8.324% $2,637,000
1210741 Sun Casa, LLC 1150 East Eighth Street Tucson AZ 85719 8.740% 8.450% $1,250,000
2354329 Mararisk, A Washington General 1101 S.W. 139th Street Burien WA 98166 8.640% 8.350% $13,450,000
Prntshp
1211542 The Pines Apartments (A PA. G.P.) 4800-4860 Pine Street PhiladelphiaPA 19143 8.330% 8.090% $2,497,500
4316802 B & W Princeton Trust 707-725 Princeton Blvd., Lowell MA 01851 8.820% 8.530% $3,000,000
and 1840-1844 Middlesex
St.
1234439 New Wildflower I Associates, LLC 6034 Pineland Road Dallas TX 75231 8.480% 8.240% $4,360,000
2217631 Post Oak Investors, LP 3301 Fm Highway 1417 Sherman TX 75092 8.570% 8.280% $3,100,000
1215637 Brooksfield, Ltd. 7577 Old Corpus Christi San Antonio TX 78223 8.560% 8.320% $3,200,000
Hwy.
1217243 TVO Greens Partners Limited 9400 Coventry Square Drive Houston TX 77099 8.560% 8.320% $2,200,000
Partnership
2210736 Hutzler's Historic Associates 121 South Fremont Avenue Baltimore MD 21201 8.310% 8.070% $3,150,000
2310437 E. Leon McCasland BW, LLC 1123 Brandywine Lane Norman OK 73071 8.460% 8.170% $1,562,000
1204545 Michael J. and Kathleen Woodward 5219 Wynnefield Avenue PhiladelphiaPA 19131 8.410% 8.120% $1,275,000
4322828 Woodland Village Apartments 813 West University Avenue Flagstaff AZ 86001 8.650% 8.440% $7,100,000
4323924 Village Square Associates LP 102 Park Circle Sun Prairie WI 53590 8.270% 8.005% $5,250,000
4213026 Community Acres Associates 1805 Southwest 4th Court Ft. FL 33312 8.140% 7.900% $3,005,000
Lauderdale
4230327 Loch Lomond I Associates 401 West 34th Street Pompano FL 33064 8.210% 7.920% $7,500,000
Beach
1214846 Riverside Property Corporation 400 East Riverside Drive St. George UT 84790 8.270% 8.030% $4,000,000
4213631 Cypress Grove Limited Partnership 211 Republic Avenue Lafayette LA 70508 8.170% 7.930% $2,850,000
4230133 Jefferson Heights Associates, LP 8939 Jefferson Highway Baton Rouge LA 70809 8.170% 7.930% $6,600,000
4211432 The Arbors at Signal Mountain 751 Runyan Drive Chatanooga TN 37405 8.170% 7.930% $2,277,000
Limited Partnership
1220047 Buckingham Oaks, LLC 934 S. Peoria Street Aurora CO 80012 8.210% 7.970% $5,034,000
2211638 6738 Boardwalk LLC 6738 North 45th Avenue Glendale AZ 85301 8.230% 7.940% $1,900,000
1310048 Investors Choice Florida Public 2223 Astor Street Orange Park FL 32073 8.262% 8.022% $3,900,000
Fund II, Ltd.
4211735 Sunrise Salem Associates 2540 Hyacinth Street NE Salem OR 97307 8.050% 7.810% $2,175,000
1311249 Plaza South Apartments Limited 15529 Plaza South Drive Taylor MI 48180 8.220% 7.980% $2,000,000
Partnership
1326450 Falcon Ridge, L.P. 5401 Boca Raton Blvd. Ft. Worth TX 76112 8.210% 7.970% $2,450,000
4314434 Hunter Oaks Associates, Ltd. 1401 U.S. Highway 80 West Clinton MS 39056 8.188% 7.948% $2,800,000
4314837 JRMM Management, L.L.C. 213 Skyline Circle Grand TX 75050 8.210% 7.770% $930,000
Prairie
1228053 New Wildflower III Associates, 6034 Pineland Dallas TX 75231 8.070% 7.830% $4,655,000
L.L.C.
2313739 135-143 Haven Avenue Associates, 736 W. 173rd St. and 735 New York NY 10032 7.880% 7.640% $2,505,000
L.P. W. 172nd St.
1311836 Horn Barlow-Edgewood Associates 800 N. Nursery Road Irving TX 75061 7.970% 7.730% $750,000
3341507 La Serena Apartments, Inc. 18547 East Colima Avenue Los Angeles CA 91748 8.040% 7.800% $10,000,000
1315355 INTRUST Limited VII 3970 Covington Drive Reno NV 89503 8.000% 7.760% $4,500,000
1324856 Downtown Housing Associates, Ltd. 1222 Commerce Street Dallas TX 75202 8.030% 7.790% $4,390,000
1350452 Larchmont Associates Limited 1233 Cribb Street Toledo OH 43612 8.020% 7.780% $5,450,000
Partnership
1311257 Investors Syndicate IV Daluce 1600 Pullen Road Tallahassee FL 32303 8.110% 7.870% $2,680,000
Associates
1309659 Investors Florida Capital Fund, 412 West Jefferson Street Tallahassee FL 32301 8.100% 7.860% $825,000
Ltd.
1306461 Investors Florida Capital Fund, 405 West College Avenue Tallahassee FL 32301 8.100% 7.860% $611,250
Ltd.
1307158 Investors Syndicate IV Georgetown 1324 NW 16th Avenue Gainesville FL 32605 8.110% 7.870% $1,100,000
Associates
6320001 Linbar Associates 5099 Linbar Drive Nashville TN 37211 9.250% 7.643% $3,700,000
6338602 Southeast Multi-Family Partners, 861 Franklin Road Marietta GA 30067 9.125% 7.643% $8,100,000
L.P., III
6322403 Parkdale Gardens National 9701 Dale Crest Drive Dallas TX 75220 8.300% 7.643% $3,000,000
Corporation
6321805 Southeast Multi-Family Partners, 4396 Pleasant Point Drive Decatur GA 30334 8.500% 7.643% $4,715,000
L.P., II
6322006 Shadowbluff, L.P. 221 Plus Park Blvd. Nashville TN 37217 8.050% 7.643% $5,600,000
6328007 Southeast Multi-Family Partners, 6355 Memorial Drive Stone GA 30083 8.150% 7.643% $7,200,000
L.P., IV Mountain
6319208 Key West Polo Club Apartments, 3333 Duck Avenue Key West FL 33040 7.950% 7.643% $11,400,000
Ltd.
4805012 DBL Operating Corp. 1344 University Avenue New York NY 11415 8.490% 8.200% $800,000
4807410 DBL Operating Corp. 2765 Kingsbridge Terrace New York NY 10463 8.490% 8.200% $1,275,000
4802513 Valentine Ventures, Inc. 2396 Valentine Avenue New York NY 10457 8.490% 8.200% $440,000
4803011 1354 Commonwealth Associates 1354 Commonwealth Avenue New York NY 10460 8.490% 8.200% $477,000
4804114 Valentine Ventures, Inc. 2773-79 Briggs Avenue New York NY 10458 8.490% 8.200% $825,000
3814406 Westpark Apartments Enterprises 6900 Westpark Place Westminster CA 92683 8.980% 8.740% $5,265,000
5804808 Low Country, L.P. 90 Dillon Road Hilton SC 29928 8.640% 8.480% $1,350,000
Head
5829606 Prescott Equity Holdings, L.P. 1053 Sandretto Drive Prescott AZ 86301 8.570% 8.410% $1,632,000
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Current Remaining
NMCC Unpaid (Months) as of Matur-
Loan Zip Principal Bal. Loan 5/1/96 ity
Number Borrower Name Property Address City State Code (5/1/96) Term (in months) Date
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
95111 River Park Limited Partnership US 270 and Tanner Road Malvern AR 72104 $5,759,416.36 120 113 10/1/05
95112 ASG MacArthur, Ltd. 1111 and 1221 West Irving TX 75062 $2,979,488.99 84 76 9/1/02
Airport Freeway
95115 Lake Worth Center, Ltd. 6336 Lake Worth Boulevard Lake Worth TX 76135 $3,178,161.06 120 113 10/1/05
95118 Festival Associates 7339 Six Forks Road Raleigh NC 27609 $6,095,174.18 84 79 12/1/02
95127 Girard Associates Partnership 200-220 Girard Street GaithersburgMD 20877 $4,974,578.25 84 79 12/1/02
95116 PBSC, LLC 3200-3245 PA Avenue Washington DC 20020 $2,373,511.14 84 80 1/1/03
95113 Bay Ridge Plaza, L.L.C. 889 - 895 Bay Ridge Avenue Annapolis MD 21403 $3,665,418.51 120 114 11/1/05
951113 Colleyville Monticello Partners, 5005 Colleyville Boulevard Colleyville TX 76034 $1,343,191.58 84 79 12/1/02
Ltd.
951218 Skyway BC, Inc. 22nd Avenue and 31st St. FL 33712 $2,681,457.51 120 116 1/1/06
Street Petersburg
951112 Brauvin/Crown Point, LP 1205 N. Eastman Road Kingsport TN 37664 $3,251,264.44 84 80 1/1/03
951124 BL Northshore, L.P. 1500-1600 Wildcat Drive Portland TX 78374 $2,861,061.51 120 117 2/1/06
951115 Louise B. Mazza Family Trust 3500-3118 Connecticut Washington DC 20008 $2,373,999.29 120 116 1/1/06
Avenue, N.W.
951116 Brookwood Strategic Partners Ltd. Jefferson Davis Hwy. FredericksbuVA 22401 $4,410,673.26 84 81 2/1/03
Partnership (Rte. 1) & Fall Hill Ave.
951110 Melrose Partnership 2400 Franklin Pike Nashville TN 37204 $1,268,606.72 120 117 2/1/06
951117 Woodford Square Associates L.P. 701 North Battlefield Chesapeake VA 23320 $4,261,358.48 120 117 2/1/06
Boulevard
951611 Eleven Hundred Connecticut 1100 Connecticut Ave., Washington DC 20036 $3,486,921.32 120 117 2/1/06
Avenue, L.P. N.W.
951223 Central Ohio Associates 18 Allison Drive Shelby OH 44875 $6,478,441.07 120 117 2/1/06
962127 La Place Center Limited 2101 Richland Road Beachwood OH 44122 $10,573,255.65 120 119 4/1/06
Partnership
95131 Parkview Partnership 200 Nursing Home Lane Pikeville KY 40501 $3,820,848.42 84 75 8/1/02
95142 Susquehanna Holdings Co. 300 Courtright Street Wilkes-BarrePA 18702 $2,784,692.09 240 234 11/1/15
95149 Grace Personal Care Home of 8847 Hospital Drive DouglasvilleGA 30134 $1,593,099.85 120 115 12/1/05
Douglasville
951419 Oak Grove of Rutherfordton Ltd. Route 8, Box 7 RutherfordtoNC 28752 $2,988,668.49 84 80 1/1/03
Partnership
951314 Hickory Creek Nursing Center, Inc. 3421 Pinnacle Road Moraine OH 45418 $3,489,060.25 120 117 2/1/06
2337930 Iroquois LLC 111 Old Hickory Boulevard Nashville TN 37221 $9,044,333.54 120 110 7/1/05
S.W.
2316021 Sanaga Development, Inc. 5333 East Thomas Road Phoenix AZ 85018 $2,583,605.68 120 110 7/1/05
4217009 Barrington Crossing, LP 1301 Park Place Boulevard Hurst TX 76053 $3,527,795.42 84 74 7/1/02
2314027 Statesman Jamestown Partners, Ltd. 4320 Bull Creek Road Austin TX 78731 $2,734,605.72 120 111 8/1/05
2305732 Royal Oaks LLC 206 Stratton Blvd. Ashland TN 37015 $513,900.90 120 110 7/1/05
City
2311228 Sundial Apartments, Inc. 55515 Alabama El Paso TX 79904 $1,541,548.91 120 111 8/1/05
2302633 Commordore, LLC 2308 21st Avenue South Nashville TN 37212 $386,668.14 120 110 7/1/05
2304634 Studio Company 801 Hillview Heights Nashville TN 37221 $480,104.75 120 110 7/1/05
2212835 Woodlands Holdings, Inc. 10010 Broadway San Antonio TX 78217 $1,912,788.25 84 74 7/1/02
1320040 Preston Chase Associates, LP 1034 Franklin Road Marietta GA 30067 $4,275,684.18 120 111 8/1/05
4319608 La Verde-Richland Investors, 1201-A Del Mar Court Richland WA 99352 $4,472,248.77 120 110 7/1/05
Calif. LP
4313010 NAP / Springman Fund IV 1001 South Dahlia St. and Glendale CO 80222 $1,887,282.33 120 109 6/1/05
4747 East Mississippi Ave.
4208020 Fort Worth Hidden Oaks 1800 Barbara Road River Oaks TX 76114 $1,036,166.99 84 73 6/1/02
Apartments, LP
4203621 Fort Worth River Oaks Apartments, 1904 Roberts Cut Off Fort Worth TX 76114 $454,006.01 84 73 6/1/02
LP
4215204 Sherman Westlake Village 1800 West Washington Sherman TX 75092 $1,886,993.71 84 69 2/1/02
Associates, LP Street
4232122 Sundancer Investors, LP 4250 East 29th Street Tucson AZ 85711 $2,583,339.18 84 74 7/1/02
4215825 Park Glen Associates, L.P. 7425 La Vista Drive Dallas TX 75214 $2,756,929.46 84 74 7/1/02
4211423 Groton Apartments Associates LP 39 Broad Street Extension Groton CT 06340 $2,622,546.20 84 75 8/1/02
1210741 Sun Casa, LLC 1150 East Eighth Street Tucson AZ 85719 $1,241,670.84 120 113 10/1/05
2354329 Mararisk, A Washington General 1101 S.W. 139th Street Burien WA 98166 $13,385,050.48 84 76 9/1/02
Prntshp
1211542 The Pines Apartments (A PA. G.P.) 4800-4860 Pine Street PhiladelphiaPA 19143 $2,486,301.93 84 77 10/1/02
4316802 B & W Princeton Trust 707-725 Princeton Blvd., Lowell MA 01851 $2,986,035.43 120 112 9/1/05
and 1840-1844 Middlesex
St.
1234439 New Wildflower I Associates, LLC 6034 Pineland Road Dallas TX 75231 $4,338,250.27 84 76 9/1/02
2217631 Post Oak Investors, LP 3301 Fm Highway 1417 Sherman TX 75092 $3,084,815.61 84 76 9/1/02
1215637 Brooksfield, Ltd. 7577 Old Corpus Christi San Antonio TX 78223 $3,184,293.95 84 76 9/1/02
Hwy.
1217243 TVO Greens Partners Limited 9400 Coventry Square Drive Houston TX 77099 $2,189,202.12 84 76 9/1/02
Partnership
2210736 Hutzler's Historic Associates 121 South Fremont Avenue Baltimore MD 21201 $3,135,819.05 84 77 10/1/02
2310437 E. Leon McCasland BW, LLC 1123 Brandywine Lane Norman OK 73071 $1,555,178.51 120 113 10/1/05
1204545 Michael J. and Kathleen Woodward 5219 Wynnefield Avenue PhiladelphiaPA 19131 $1,270,195.63 84 78 11/1/02
4322828 Woodland Village Apartments 813 West University Avenue Flagstaff AZ 86001 $7,070,169.39 120 113 10/1/05
4323924 Village Square Associates LP 102 Park Circle Sun Prairie WI 53590 $5,229,647.62 84 78 11/1/02
4213026 Community Acres Associates 1805 Southwest 4th Court Ft. FL 33312 $2,993,040.69 84 78 11/1/02
Lauderdale
4230327 Loch Lomond I Associates 401 West 34th Street Pompano FL 33064 $7,470,570.25 84 78 11/1/02
Beach
1214846 Riverside Property Corporation 400 East Riverside Drive St. George UT 84790 $3,984,493.45 120 114 11/1/05
4213631 Cypress Grove Limited Partnership 211 Republic Avenue Lafayette LA 70508 $2,838,726.00 84 78 11/1/02
4230133 Jefferson Heights Associates, LP 8939 Jefferson Highway Baton Rouge LA 70809 $6,573,891.73 84 78 11/1/02
4211432 The Arbors at Signal Mountain 751 Runyan Drive Chatanooga TN 37405 $2,267,992.65 84 78 11/1/02
Limited Partnership
1220047 Buckingham Oaks, LLC 934 S. Peoria Street Aurora CO 80012 $5,014,246.72 84 78 11/1/02
2211638 6738 Boardwalk LLC 6738 North 45th Avenue Glendale AZ 85301 $1,893,833.36 84 79 12/1/02
1310048 Investors Choice Florida Public 2223 Astor Street Orange Park FL 32073 $3,887,424.02 120 115 12/1/05
Fund II, Ltd.
4211735 Sunrise Salem Associates 2540 Hyacinth Street NE Salem OR 97307 $2,167,679.27 84 79 12/1/02
1311249 Plaza South Apartments Limited 15529 Plaza South Drive Taylor MI 48180 $1,993,495.65 120 115 12/1/05
Partnership
1326450 Falcon Ridge, L.P. 5401 Boca Raton Blvd. Ft. Worth TX 76112 $2,442,016.01 120 115 12/1/05
4314434 Hunter Oaks Associates, Ltd. 1401 U.S. Highway 80 West Clinton MS 39056 $2,790,834.69 120 115 12/1/05
4314837 JRMM Management, L.L.C. 213 Skyline Circle Grand TX 75050 $927,583.78 120 116 1/1/06
Prairie
1228053 New Wildflower III Associates, 6034 Pineland Dallas TX 75231 $4,639,395.05 84 79 12/1/02
L.L.C.
2313739 135-143 Haven Avenue Associates, 736 W. 173rd St. and 735 New York NY 10032 $2,498,043.13 120 116 1/1/06
L.P. W. 172nd St.
1311836 Horn Barlow-Edgewood Associates 800 N. Nursery Road Irving TX 75061 $747,954.49 120 116 1/1/06
3341507 La Serena Apartments, Inc. 18547 East Colima Avenue Los Angeles CA 91748 $9,973,109.26 120 116 1/1/06
1315355 INTRUST Limited VII 3970 Covington Drive Reno NV 89503 $4,487,801.05 120 116 1/1/06
1324856 Downtown Housing Associates, Ltd. 1222 Commerce Street Dallas TX 75202 $4,378,171.12 120 116 1/1/06
1350452 Larchmont Associates Limited 1233 Cribb Street Toledo OH 43612 $5,426,921.71 120 116 1/1/06
Partnership
1311257 Investors Syndicate IV Daluce 1600 Pullen Road Tallahassee FL 32303 $2,672,894.54 120 116 1/1/06
Associates
1309659 Investors Florida Capital Fund, 412 West Jefferson Street Tallahassee FL 32301 $822,808.25 120 116 1/1/06
Ltd.
1306461 Investors Florida Capital Fund, 405 West College Avenue Tallahassee FL 32301 $609,626.11 120 116 1/1/06
Ltd.
1307158 Investors Syndicate IV Georgetown 1324 NW 16th Avenue Gainesville FL 32605 $1,097,083.59 120 116 1/1/06
Associates
6320001 Linbar Associates 5099 Linbar Drive Nashville TN 37211 $3,660,363.49 120 108 5/1/05
6338602 Southeast Multi-Family Partners, 861 Franklin Road Marietta GA 30067 $8,050,739.73 120 109 6/1/05
L.P., III
6322403 Parkdale Gardens National 9701 Dale Crest Drive Dallas TX 75220 $2,969,009.30 120 110 7/1/05
Corporation
6321805 Southeast Multi-Family Partners, 4396 Pleasant Point Drive Decatur GA 30334 $4,682,332.56 120 113 10/1/05
L.P., II
6322006 Shadowbluff, L.P. 221 Plus Park Blvd. Nashville TN 37217 $5,581,151.24 120 115 12/1/05
6328007 Southeast Multi-Family Partners, 6355 Memorial Drive Stone GA 30083 $7,176,250.24 120 115 12/1/05
L.P., IV Mountain
6319208 Key West Polo Club Apartments, 3333 Duck Avenue Key West FL 33040 $11,368,782.89 120 116 1/1/06
Ltd.
4805012 DBL Operating Corp. 1344 University Avenue New York NY 11415 $797,537.19 216 211 12/1/13
4807410 DBL Operating Corp. 2765 Kingsbridge Terrace New York NY 10463 $1,271,074.93 216 211 12/1/13
4802513 Valentine Ventures, Inc. 2396 Valentine Avenue New York NY 10457 $438,645.47 216 211 12/1/13
4803011 1354 Commonwealth Associates 1354 Commonwealth Avenue New York NY 10460 $475,531.55 216 211 12/1/13
4804114 Valentine Ventures, Inc. 2773-79 Briggs Avenue New York NY 10458 $822,460.24 216 211 12/1/13
3814406 Westpark Apartments Enterprises 6900 Westpark Place Westminster CA 92683 $5,232,017.52 216 205 6/1/13
5804808 Low Country, L.P. 90 Dillon Road Hilton SC 29928 $1,342,639.42 216 207 8/1/13
Head
5829606 Prescott Equity Holdings, L.P. 1053 Sandretto Drive Prescott AZ 86301 $1,621,935.57 216 206 7/1/13
===================================================================================================================================
Aggregate Total $322,639,635.30
===================================================================================================================================
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
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Amorti- Remaining Current
NMCC zation Amorti- Monthly
Loan Zip Period zation Debt
Number Borrower Name Property Address City State Code (Months) (Months) Service
- --------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
95111 River Park Limited Partnership US 270 and Tanner Road Malvern AR 72104 300 293 $46,464.99
95112 ASG MacArthur, Ltd. 1111 and 1221 West Irving TX 75062 300 292 $26,044.26
Airport Freeway
95115 Lake Worth Center, Ltd. 6336 Lake Worth Boulevard Lake Worth TX 76135 300 293 $25,968.13
95118 Festival Associates 7339 Six Forks Road Raleigh NC 27609 240 235 $53,249.98
95127 Girard Associates Partnership 200-220 Girard Street GaithersburgMD 20877 300 295 $39,556.25
95116 PBSC, LLC 3200-3245 PA Avenue Washington DC 20020 180 176 $23,831.12
95113 Bay Ridge Plaza, L.L.C. 889 - 895 Bay Ridge Avenue Annapolis MD 21403 240 234 $32,893.51
951113 Colleyville Monticello Partners, 5005 Colleyville Boulevard Colleyville TX 76034 300 295 $10,725.39
Ltd.
951218 Skyway BC, Inc. 22nd Avenue and 31st St. FL 33712 240 236 $22,567.08
Street Petersburg
951112 Brauvin/Crown Point, LP 1205 N. Eastman Road Kingsport TN 37664 240 236 $26,483.39
951124 BL Northshore, L.P. 1500-1600 Wildcat Drive Portland TX 78374 300 297 $22,379.76
951115 Louise B. Mazza Family Trust 3500-3118 Connecticut Washington DC 20008 180 176 $24,128.71
Avenue, N.W.
951116 Brookwood Strategic Partners Ltd. Jefferson Davis Hwy. FredericksbuVA 22401 300 297 $33,801.86
Partnership (Rte. 1) & Fall Hill Ave.
951110 Melrose Partnership 2400 Franklin Pike Nashville TN 37204 240 237 $10,807.88
951117 Woodford Square Associates L.P. 701 North Battlefield Chesapeake VA 23320 300 297 $32,910.23
Boulevard
951611 Eleven Hundred Connecticut 1100 Connecticut Ave., Washington DC 20036 300 297 $24,692.64
Avenue, L.P. N.W.
951223 Central Ohio Associates 18 Allison Drive Shelby OH 44875 300 297 $49,011.05
962127 La Place Center Limited 2101 Richland Road Beachwood OH 44122 300 299 $83,802.33
Partnership
95131 Parkview Partnership 200 Nursing Home Lane Pikeville KY 40501 300 291 $34,154.47
95142 Susquehanna Holdings Co. 300 Courtright Street Wilkes-BarrePA 18702 300 294 $23,737.64
95149 Grace Personal Care Home of 8847 Hospital Drive DouglasvilleGA 30134 300 295 $13,776.86
Douglasville
951419 Oak Grove of Rutherfordton Ltd. Route 8, Box 7 RutherfordtoNC 28752 300 296 $25,161.91
Partnership
951314 Hickory Creek Nursing Center, Inc. 3421 Pinnacle Road Moraine OH 45418 300 297 $28,788.95
2337930 Iroquois LLC 111 Old Hickory Boulevard Nashville TN 37221 360 350 $70,681.77
S.W.
2316021 Sanaga Development, Inc. 5333 East Thomas Road Phoenix AZ 85018 360 350 $19,918.09
4217009 Barrington Crossing, LP 1301 Park Place Boulevard Hurst TX 76053 360 350 $27,296.43
2314027 Statesman Jamestown Partners, Ltd. 4320 Bull Creek Road Austin TX 78731 360 351 $21,164.61
2305732 Royal Oaks LLC 206 Stratton Blvd. Ashland TN 37015 360 350 $4,052.48
City
2311228 Sundial Apartments, Inc. 55515 Alabama El Paso TX 79904 360 351 $12,072.29
2302633 Commordore, LLC 2308 21st Avenue South Nashville TN 37212 360 350 $3,049.16
2304634 Studio Company 801 Hillview Heights Nashville TN 37221 360 350 $3,785.97
2212835 Woodlands Holdings, Inc. 10010 Broadway San Antonio TX 78217 360 350 $14,706.19
1320040 Preston Chase Associates, LP 1034 Franklin Road Marietta GA 30067 360 351 $32,941.46
4319608 La Verde-Richland Investors, 1201-A Del Mar Court Richland WA 99352 360 350 $34,824.60
Calif. LP
4313010 NAP / Springman Fund IV 1001 South Dahlia St. and Glendale CO 80222 360 349 $14,817.23
4747 East Mississippi Ave.
4208020 Fort Worth Hidden Oaks 1800 Barbara Road River Oaks TX 76114 360 349 $8,212.74
Apartments, LP
4203621 Fort Worth River Oaks Apartments, 1904 Roberts Cut Off Fort Worth TX 76114 360 349 $3,598.49
LP
4215204 Sherman Westlake Village 1800 West Washington Sherman TX 75092 360 345 $16,860.90
Associates, LP Street
4232122 Sundancer Investors, LP 4250 East 29th Street Tucson AZ 85711 360 350 $19,771.06
4215825 Park Glen Associates, L.P. 7425 La Vista Drive Dallas TX 75214 360 350 $20,945.27
4211423 Groton Apartments Associates LP 39 Broad Street Extension Groton CT 06340 360 351 $20,489.68
1210741 Sun Casa, LLC 1150 East Eighth Street Tucson AZ 85719 300 293 $10,268.30
2354329 Mararisk, A Washington General 1101 S.W. 139th Street Burien WA 98166 360 352 $104,756.30
Prntshp
1211542 The Pines Apartments (A PA. G.P.) 4800-4860 Pine Street PhiladelphiaPA 19143 360 353 $18,903.53
4316802 B & W Princeton Trust 707-725 Princeton Blvd., Lowell MA 01851 360 352 $23,751.16
and 1840-1844 Middlesex
St.
1234439 New Wildflower I Associates, LLC 6034 Pineland Road Dallas TX 75231 360 352 $33,462.85
2217631 Post Oak Investors, LP 3301 Fm Highway 1417 Sherman TX 75092 360 352 $23,990.28
1215637 Brooksfield, Ltd. 7577 Old Corpus Christi San Antonio TX 78223 360 352 $24,741.43
Hwy.
1217243 TVO Greens Partners Limited 9400 Coventry Square Drive Houston TX 77099 360 352 $17,009.73
Partnership
2210736 Hutzler's Historic Associates 121 South Fremont Avenue Baltimore MD 21201 360 353 $23,797.90
2310437 E. Leon McCasland BW, LLC 1123 Brandywine Lane Norman OK 73071 360 353 $11,966.18
1204545 Michael J. and Kathleen Woodward 5219 Wynnefield Avenue PhiladelphiaPA 19131 360 354 $9,722.44
4322828 Woodland Village Apartments 813 West University Avenue Flagstaff AZ 86001 360 353 $55,349.41
4323924 Village Square Associates LP 102 Park Circle Sun Prairie WI 53590 360 354 $39,515.34
4213026 Community Acres Associates 1805 Southwest 4th Court Ft. FL 33312 360 354 $22,343.60
Lauderdale
4230327 Loch Lomond I Associates 401 West 34th Street Pompano FL 33064 360 354 $56,134.23
Beach
1214846 Riverside Property Corporation 400 East Riverside Drive St. George UT 84790 360 354 $30,106.92
4213631 Cypress Grove Limited Partnership 211 Republic Avenue Lafayette LA 70508 360 354 $21,251.02
4230133 Jefferson Heights Associates, LP 8939 Jefferson Highway Baton Rouge LA 70809 360 354 $49,212.90
4211432 The Arbors at Signal Mountain 751 Runyan Drive Chatanooga TN 37405 360 354 $16,978.45
Limited Partnership
1220047 Buckingham Oaks, LLC 934 S. Peoria Street Aurora CO 80012 360 354 $37,677.30
2211638 6738 Boardwalk LLC 6738 North 45th Avenue Glendale AZ 85301 360 355 $14,247.36
1310048 Investors Choice Florida Public 2223 Astor Street Orange Park FL 32073 360 355 $29,332.30
Fund II, Ltd.
4211735 Sunrise Salem Associates 2540 Hyacinth Street NE Salem OR 97307 360 355 $16,035.26
1311249 Plaza South Apartments Limited 15529 Plaza South Drive Taylor MI 48180 360 355 $14,983.17
Partnership
1326450 Falcon Ridge, L.P. 5401 Boca Raton Blvd. Ft. Worth TX 76112 360 355 $18,337.18
4314434 Hunter Oaks Associates, Ltd. 1401 U.S. Highway 80 West Clinton MS 39056 360 355 $20,913.55
4314837 JRMM Management, L.L.C. 213 Skyline Circle Grand TX 75050 360 356 $6,960.64
Prairie
1228053 New Wildflower III Associates, 6034 Pineland Dallas TX 75231 360 355 $34,384.17
L.L.C.
2313739 135-143 Haven Avenue Associates, 736 W. 173rd St. and 735 New York NY 10032 360 356 $18,171.68
L.P. W. 172nd St.
1311836 Horn Barlow-Edgewood Associates 800 N. Nursery Road Irving TX 75061 360 356 $5,487.56
3341507 La Serena Apartments, Inc. 18547 East Colima Avenue Los Angeles CA 91748 360 356 $73,655.50
1315355 INTRUST Limited VII 3970 Covington Drive Reno NV 89503 360 356 $33,019.41
1324856 Downtown Housing Associates, Ltd. 1222 Commerce Street Dallas TX 75202 360 356 $32,304.12
1350452 Larchmont Associates Limited 1233 Cribb Street Toledo OH 43612 300 296 $42,136.22
Partnership
1311257 Investors Syndicate IV Daluce 1600 Pullen Road Tallahassee FL 32303 360 356 $19,870.79
Associates
1309659 Investors Florida Capital Fund, 412 West Jefferson Street Tallahassee FL 32301 360 356 $6,111.17
Ltd.
1306461 Investors Florida Capital Fund, 405 West College Avenue Tallahassee FL 32301 360 356 $4,527.82
Ltd.
1307158 Investors Syndicate IV Georgetown 1324 NW 16th Avenue Gainesville FL 32605 360 356 $8,155.92
Associates
6320001 Linbar Associates 5099 Linbar Drive Nashville TN 37211 300 288 $31,686.17
6338602 Southeast Multi-Family Partners, 861 Franklin Road Marietta GA 30067 360 349 $65,904.27
L.P., III
6322403 Parkdale Gardens National 9701 Dale Crest Drive Dallas TX 75220 300 290 $23,753.83
Corporation
6321805 Southeast Multi-Family Partners, 4396 Pleasant Point Drive Decatur GA 30334 300 293 $37,966.46
L.P., II
6322006 Shadowbluff, L.P. 221 Plus Park Blvd. Nashville TN 37217 360 355 $41,286.18
6328007 Southeast Multi-Family Partners, 6355 Memorial Drive Stone GA 30083 360 355 $53,585.87
L.P., IV Mountain
6319208 Key West Polo Club Apartments, 3333 Duck Avenue Key West FL 33040 360 356 $83,252.15
Ltd.
4805012 DBL Operating Corp. 1344 University Avenue New York NY 11415 360 355 $6,145.64
4807410 DBL Operating Corp. 2765 Kingsbridge Terrace New York NY 10463 360 355 $9,794.61
4802513 Valentine Ventures, Inc. 2396 Valentine Avenue New York NY 10457 360 355 $3,380.10
4803011 1354 Commonwealth Associates 1354 Commonwealth Avenue New York NY 10460 360 355 $3,664.34
4804114 Valentine Ventures, Inc. 2773-79 Briggs Avenue New York NY 10458 360 355 $6,337.69
3814406 Westpark Apartments Enterprises 6900 Westpark Place Westminster CA 92683 360 349 $42,287.64
5804808 Low Country, L.P. 90 Dillon Road Hilton SC 29928 360 351 $10,514.57
Head
5829606 Prescott Equity Holdings, L.P. 1053 Sandretto Drive Prescott AZ 86301 360 350 $12,629.72
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
NMCC
Loan Zip
Number Borrower Name Property Address City State Code (1) (2) (3) (4) (5)
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
95111 River Park Limited Partnership US 270 and Tanner Road Malvern AR 72104 7,700,000 75% 1.31 12/31/95 0.159%
95112 ASG MacArthur, Ltd. 1111 and 1221 West Irving TX 75062 4,050,000 74% 1.54 12/31/95 0.159%
Airport Freeway
95115 Lake Worth Center, Ltd. 6336 Lake Worth Boulevard Lake Worth TX 76135 4,300,000 74% 1.17 12/31/95 0.159%
95118 Festival Associates 7339 Six Forks Road Raleigh NC 27609 8,420,000 72% 1.50 12/31/95 0.159%
95127 Girard Associates Partnership 200-220 Girard Street GaithersburgMD 20877 8,750,000 57% 1.99 12/31/95 0.159%
95116 PBSC, LLC 3200-3245 PA Avenue Washington DC 20020 4,450,000 53% 1.90 12/31/95 0.159%
95113 Bay Ridge Plaza, L.L.C. 889 - 895 Bay Ridge Avenue Annapolis MD 21403 5,600,000 65% 1.55 12/31/95 0.159%
951113 Colleyville Monticello Partners, 5005 Colleyville Boulevard Colleyville TX 76034 2,000,000 67% 1.70 12/31/95 0.159%
Ltd.
951218 Skyway BC, Inc. 22nd Avenue and 31st St. FL 33712 4,400,000 61% 1.86 12/31/95 0.159%
Street Petersburg
951112 Brauvin/Crown Point, LP 1205 N. Eastman Road Kingsport TN 37664 5,000,000 65% 1.68 12/31/95 0.159%
951124 BL Northshore, L.P. 1500-1600 Wildcat Drive Portland TX 78374 4,100,000 70% 1.72 12/31/95 0.159%
951115 Louise B. Mazza Family Trust 3500-3118 Connecticut Washington DC 20008 5,000,000 47% 1.28 12/31/95 0.259%
Avenue, N.W.
951116 Brookwood Strategic Partners Ltd. Jefferson Davis Hwy. FredericksbuVA 22401 7,100,000 62% 1.88 12/31/95 0.209%
Partnership (Rte. 1) & Fall Hill Ave.
951110 Melrose Partnership 2400 Franklin Pike Nashville TN 37204 1,750,000 72% 1.41 12/31/95 0.159%
951117 Woodford Square Associates L.P. 701 North Battlefield Chesapeake VA 23320 6,300,000 68% 1.61 12/31/95 0.159%
Boulevard
951611 Eleven Hundred Connecticut 1100 Connecticut Ave., Washington DC 20036 22,400,00 16% 7.96 12/31/95 0.099%
Avenue, L.P. N.W.
951223 Central Ohio Associates 18 Allison Drive Shelby OH 44875 13,200,00 49% 2.31 12/31/95 0.309%
962127 La Place Center Limited 2101 Richland Road Beachwood OH 44122 15,100,00 70% 1.43 12/31/95 0.099%
Partnership
95131 Parkview Partnership 200 Nursing Home Lane Pikeville KY 40501 5,300,000 72% 1.41 12/31/95 0.159%
95142 Susquehanna Holdings Co. 300 Courtright Street Wilkes-BarrePA 18702 5,100,000 55% 2.14 12/31/95 0.159%
95149 Grace Personal Care Home of 8847 Hospital Drive DouglasvilleGA 30134 2,700,000 59% 1.82 12/31/95 0.159%
Douglasville
951419 Oak Grove of Rutherfordton Ltd. Route 8, Box 7 RutherfordtoNC 28752 4,100,000 73% 1.42 12/31/95 0.159%
Partnership
951314 Hickory Creek Nursing Center, Inc. 3421 Pinnacle Road Moraine OH 45418 7,300,000 48% 2.01 12/31/95 0.159%
2337930 Iroquois LLC 111 Old Hickory Boulevard Nashville TN 37221 13,500,00 67% 1.58 12/31/95 0.209%
S.W.
2316021 Sanaga Development, Inc. 5333 East Thomas Road Phoenix AZ 85018 4,000,000 65% 1.79 12/31/95 0.239%
4217009 Barrington Crossing, LP 1301 Park Place Boulevard Hurst TX 76053 4,740,000 74% 1.28 12/31/95 0.239%
2314027 Statesman Jamestown Partners, Ltd. 4320 Bull Creek Road Austin TX 78731 3,700,000 74% 1.77 12/31/95 0.289%
2305732 Royal Oaks LLC 206 Stratton Blvd. Ashland TN 37015 900,000 57% 1.88 12/31/95 0.289%
City
2311228 Sundial Apartments, Inc. 55515 Alabama El Paso TX 79904 2,400,000 64% 1.50 12/31/95 0.289%
2302633 Commordore, LLC 2308 21st Avenue South Nashville TN 37212 620,000 62% 1.60 12/31/95 0.289%
2304634 Studio Company 801 Hillview Heights Nashville TN 37221 670,000 72% 1.48 12/31/95 0.289%
2212835 Woodlands Holdings, Inc. 10010 Broadway San Antonio TX 78217 2,700,000 71% 1.61 12/31/95 0.289%
1320040 Preston Chase Associates, LP 1034 Franklin Road Marietta GA 30067 5,800,000 74% 1.44 12/31/95 0.289%
4319608 La Verde-Richland Investors, 1201-A Del Mar Court Richland WA 99352 7,840,000 57% 1.33 12/31/95 0.239%
Calif. LP
4313010 NAP / Springman Fund IV 1001 South Dahlia St. and Glendale CO 80222 2,800,000 67% 1.49 12/31/95 0.289%
4747 East Mississippi Ave.
4208020 Fort Worth Hidden Oaks 1800 Barbara Road River Oaks TX 76114 1,428,000 73% 1.64 12/31/95 0.289%
Apartments, LP
4203621 Fort Worth River Oaks Apartments, 1904 Roberts Cut Off Fort Worth TX 76114 690,000 66% 1.64 12/31/95 0.289%
LP
4215204 Sherman Westlake Village 1800 West Washington Sherman TX 75092 2,564,000 74% 1.32 12/31/95 0.289%
Associates, LP Street
4232122 Sundancer Investors, LP 4250 East 29th Street Tucson AZ 85711 4,086,000 63% 1.49 12/31/95 0.289%
4215825 Park Glen Associates, L.P. 7425 La Vista Drive Dallas TX 75214 4,000,000 69% 1.65 12/31/95 0.239%
4211423 Groton Apartments Associates LP 39 Broad Street Extension Groton CT 06340 3,500,000 75% 1.57 12/31/95 0.289%
1210741 Sun Casa, LLC 1150 East Eighth Street Tucson AZ 85719 1,800,000 69% 2.21 12/31/95 0.289%
2354329 Mararisk, A Washington General 1101 S.W. 139th Street Burien WA 98166 $18,000,0 74% 1.35 12/31/95 0.289%
Prntshp
1211542 The Pines Apartments (A PA. G.P.) 4800-4860 Pine Street PhiladelphiaPA 19143 3,330,000 75% 1.55 12/31/95 0.239%
4316802 B & W Princeton Trust 707-725 Princeton Blvd., Lowell MA 01851 4,200,000 71% 1.91 12/31/95 0.289%
and 1840-1844 Middlesex
St.
1234439 New Wildflower I Associates, LLC 6034 Pineland Road Dallas TX 75231 6,100,000 71% 1.72 12/31/95 0.239%
2217631 Post Oak Investors, LP 3301 Fm Highway 1417 Sherman TX 75092 4,353,000 71% 1.38 12/31/95 0.289%
1215637 Brooksfield, Ltd. 7577 Old Corpus Christi San Antonio TX 78223 4,400,000 72% 1.43 12/31/95 0.239%
Hwy.
1217243 TVO Greens Partners Limited 9400 Coventry Square Drive Houston TX 77099 3,050,000 72% 1.56 95 Ann 0.239%
Partnership (7 mos.)
2210736 Hutzler's Historic Associates 121 South Fremont Avenue Baltimore MD 21201 4,200,000 75% 1.54 12/31/95 0.239%
2310437 E. Leon McCasland BW, LLC 1123 Brandywine Lane Norman OK 73071 2,200,000 71% 1.75 12/31/95 0.289%
1204545 Michael J. and Kathleen Woodward 5219 Wynnefield Avenue PhiladelphiaPA 19131 1,700,000 75% 1.44 12/31/95 0.289%
4322828 Woodland Village Apartments 813 West University Avenue Flagstaff AZ 86001 10,500,00 67% 1.37 12/31/95 0.209%
4323924 Village Square Associates LP 102 Park Circle Sun Prairie WI 53590 7,000,000 75% 1.23 12/31/95 0.264%
4213026 Community Acres Associates 1805 Southwest 4th Court Ft. FL 33312 4,100,000 73% 1.45 12/31/95 0.239%
Lauderdale
4230327 Loch Lomond I Associates 401 West 34th Street Pompano FL 33064 10,600,00 70% 1.29 12/31/95 0.289%
Beach
1214846 Riverside Property Corporation 400 East Riverside Drive St. George UT 84790 5,870,000 68% 1.40 12/31/95 0.239%
4213631 Cypress Grove Limited Partnership 211 Republic Avenue Lafayette LA 70508 4,000,000 71% 1.25 12/31/95 0.239%
4230133 Jefferson Heights Associates, LP 8939 Jefferson Highway Baton Rouge LA 70809 8,800,000 75% 1.30 12/31/95 0.239%
4211432 The Arbors at Signal Mountain 751 Runyan Drive Chatanooga TN 37405 3,300,000 69% 1.35 12/31/95 0.239%
Limited Partnership
1220047 Buckingham Oaks, LLC 934 S. Peoria Street Aurora CO 80012 6,800,000 74% 2.03 12/31/95 0.239%
2211638 6738 Boardwalk LLC 6738 North 45th Avenue Glendale AZ 85301 3,100,000 61% 1.26 12/31/95 0.289%
1310048 Investors Choice Florida Public 2223 Astor Street Orange Park FL 32073 5,200,000 75% 1.37 12/31/95 0.239%
Fund II, Ltd.
4211735 Sunrise Salem Associates 2540 Hyacinth Street NE Salem OR 97307 2,900,000 75% 1.34 12/31/95 0.239%
1311249 Plaza South Apartments Limited 15529 Plaza South Drive Taylor MI 48180 3,075,000 65% 1.07 12/31/95 0.239%
Partnership
1326450 Falcon Ridge, L.P. 5401 Boca Raton Blvd. Ft. Worth TX 76112 3,450,000 71% 1.21 12/31/95 0.239%
4314434 Hunter Oaks Associates, Ltd. 1401 U.S. Highway 80 West Clinton MS 39056 4,000,000 70% 1.33 12/31/95 0.239%
4314837 JRMM Management, L.L.C. 213 Skyline Circle Grand TX 75050 1,175,000 79% 2.05 12 mos. 0.439%
Prairie ended
9/30/95
1228053 New Wildflower III Associates, 6034 Pineland Dallas TX 75231 6,000,000 77% 1.57 95 Ann 0.239%
L.L.C. (8 mos.)
2313739 135-143 Haven Avenue Associates, 736 W. 173rd St. and 735 New York NY 10032 3,350,000 75% 1.71 12/31/95 0.239%
L.P. W. 172nd St.
1311836 Horn Barlow-Edgewood Associates 800 N. Nursery Road Irving TX 75061 1,350,000 55% 2.18 12/31/95 0.239%
3341507 La Serena Apartments, Inc. 18547 East Colima Avenue Los Angeles CA 91748 14,200,00 70% 1.30 12/31/95 0.239%
1315355 INTRUST Limited VII 3970 Covington Drive Reno NV 89503 6,350,000 71% 1.55 12/31/95 0.239%
1324856 Downtown Housing Associates, Ltd. 1222 Commerce Street Dallas TX 75202 7,600,000 58% 1.42 12/31/95 0.239%
1350452 Larchmont Associates Limited 1233 Cribb Street Toledo OH 43612 7,600,000 71% 1.30 12/31/95 0.239%
Partnership
1311257 Investors Syndicate IV Daluce 1600 Pullen Road Tallahassee FL 32303 $3,350,00 80% 1.37 12/31/95 0.239%
Associates
1309659 Investors Florida Capital Fund, 412 West Jefferson Street Tallahassee FL 32301 $1,350,00 61% 1.58 12/31/95 0.239%
Ltd.
1306461 Investors Florida Capital Fund, 405 West College Avenue Tallahassee FL 32301 $925,000 66% 1.71 12/31/95 0.239%
Ltd.
1307158 Investors Syndicate IV Georgetown 1324 NW 16th Avenue Gainesville FL 32605 $1,700,00 65% 1.53 12/31/95 0.239%
Associates
6320001 Linbar Associates 5099 Linbar Drive Nashville TN 37211 5,100,000 72% 1.68 12/31/95 1.606%
6338602 Southeast Multi-Family Partners, 861 Franklin Road Marietta GA 30067 11,200,00 72% 1.41 12/31/95 1.481%
L.P., III
6322403 Parkdale Gardens National 9701 Dale Crest Drive Dallas TX 75220 4,000,000 74% 1.61 12/31/95 0.656%
Corporation
6321805 Southeast Multi-Family Partners, 4396 Pleasant Point Drive Decatur GA 30334 6,325,000 74% 1.27 12/31/95 0.856%
L.P., II
6322006 Shadowbluff, L.P. 221 Plus Park Blvd. Nashville TN 37217 8,375,000 67% 1.67 12/31/95 0.406%
6328007 Southeast Multi-Family Partners, 6355 Memorial Drive Stone GA 30083 10,300,00 70% 1.33 12/31/95 0.506%
L.P., IV Mountain
6319208 Key West Polo Club Apartments, 3333 Duck Avenue Key West FL 33040 15,200,00 75% 1.44 12/31/95 0.306%
Ltd.
4805012 DBL Operating Corp. 1344 University Avenue New York NY 11415 1,075,000 74% 1.58 12/31/95 0.289%
4807410 DBL Operating Corp. 2765 Kingsbridge Terrace New York NY 10463 1,700,000 75% 1.80 12/31/95 0.289%
4802513 Valentine Ventures, Inc. 2396 Valentine Avenue New York NY 10457 600,000 73% 1.39 12/31/95 0.289%
4803011 1354 Commonwealth Associates 1354 Commonwealth Avenue New York NY 10460 700,000 68% 1.39 12/31/95 0.289%
4804114 Valentine Ventures, Inc. 2773-79 Briggs Avenue New York NY 10458 1,100,000 75% 1.53 12/31/95 0.289%
3814406 Westpark Apartments Enterprises 6900 Westpark Place Westminster CA 92683 7,400,000 71% 1.33 12/31/95 0.239%
5804808 Low Country, L.P. 90 Dillon Road Hilton SC 29928 1,690,000 79% 1.26 12/31/95 0.159%
Head
5829606 Prescott Equity Holdings, L.P. 1053 Sandretto Drive Prescott AZ 86301 1,920,000 84% 1.35 12/31/95 0.159%
===================================================================================================================================
Weighted 0.298%
Average
===================================================================================================================================
<FN>
(1) Appraised Value (MAI)
(2) LTV as of Cut-Off
(3) Actual DSCR on 1995 Cash Flow
(4) Calculated from Most Recent Operating Statements
(5) Master Servicing Fee
</FN>
</TABLE>
<PAGE>
EXHIBIT C
FORM OF INVESTMENT REPRESENTATION LETTER
The Chase Manhattan Bank, N.A.,
as Trustee and Certificate Registrar
Four Chase MetroTech Center
Brooklyn, New York 11245
Attention: Global Trust Services
NationsLink Funding Corporation
100 North Tryon Street
Charlotte, North Carolina 28255
Attention: S. Trezevant Moore with a
copy to Robert W. Long, Esq.
Re: Transfer of NationsLink Funding Corporation, Commercial
Mortgage Pass-Through Certificates, Series 1996-1
-------------------------------------------------------
Ladies and Gentlemen:
This letter is delivered pursuant to Section 5.02 of the Pooling and
Servicing Agreement dated as of May 1, 1996 (the "Pooling and Servicing
Agreement"), by and among NationsLink Funding Corporation, as Depositor, AMRESCO
Management, Inc., as Master Servicer, AMRESCO Management, Inc., as Special
Servicer, The Chase Manhattan Bank, N.A., as REMIC Administrator and The Chase
Manhattan Bank, N.A., as Trustee on behalf of the holders of NationsLink Funding
Corporation, Commercial Mortgage Pass-Through Certificates, Series 1996-1 (the
"Certificates") in connection with the transfer by _________________ (the
"Seller") to the undersigned (the "Purchaser") of $_______________ aggregate
[Certificate Balance][Notional Amount] of Class ___ Certificates (the
"Certificate"). Capitalized terms used and not otherwise defined herein shall
have the respective meanings ascribed to such terms in the Pooling and Servicing
Agreement.
In connection with such transfer, the Purchaser hereby represents and
warrants to you and the addressees hereof as follows:
1. Check one of the following:*
/__/ The Purchaser is an institutional "accredited
investor" (an entity meeting the requirements of Rule
501(a)(1), (2), (3) or (7) of Regulation D under the
Securities Act of 1933, as amended (the "1933 Act"))
and has such knowledge and experience in financial
and business matters as to be capable of evaluating
the merits and risks of its investment in the
Certificates, and the Purchaser and any accounts for
which it is acting are each able to bear the economic
risk of the Purchaser's or such account's investment.
The Purchaser is acquiring the Certificates purchased
by it for its own account or for one or more accounts
(each of which is an "institutional accredited
investor") as to each of which the Purchaser
exercises sole investment discretion. The Purchaser
hereby undertakes to reimburse the Trust Fund for any
costs incurred by it in connection with this
transfer.
- ----------
* Purchaser must include one of the following two certifications.
<PAGE>
/__/ The Purchaser is a "qualified institutional buyer"
within the meaning of Rule 144A ("Rule 144A")
promulgated under the Securities Act of 1933, as
amended (the "1933 Act"). The Purchaser is aware that
the transfer is being made in reliance on Rule 144A,
and the Purchaser has had the opportunity to obtain
the information required to be provided pursuant to
paragraph (d)(4)(i) of Rule 144A.
2. The Purchaser's intention is to acquire the Certificate (a) for
investment for the Purchaser's own account or (b) for resale to (i) "qualified
institutional buyers" in transactions under Rule 144A, and not in any event with
the view to, or for resale in connection with, any distribution thereof, or (ii)
to institutional "accredited investors" meeting the requirements of Rule
501(a)(1), (2), (3) or (7) of Regulation D promulgated under the 1933 Act,
pursuant to any other exemption from the registration requirements of the 1933
Act, subject in the case of this clause (ii) to (w) the receipt by the
Certificate Registrar of a letter substantially in the form hereof, (x) the
receipt by the Certificate Registrar of an opinion of counsel acceptable to the
Certificate Registrar that such reoffer, resale, pledge or transfer is in
compliance with the 1933 Act, (y) the receipt by the Certificate Registrar of
such other evidence acceptable to the Certificate Registrar that such reoffer,
resale, pledge or transfer is in compliance with the 1933 Act and other
applicable laws, and (z) a written undertaking to reimburse the Trust for any
costs incurred by it in connection with the proposed transfer. The Purchaser
understands that the Certificate (and any subsequent Certificate) has not been
registered under the 1933 Act, by reason of a specified exemption from the
registration provisions of the 1933 Act which depends upon, among other things,
the bona fide nature of the Purchaser's investment intent (or intent to resell
to only certain investors in certain exempted transactions) as expressed herein.
3. The Purchaser has reviewed the Private Placement Memorandum relating to
the Certificates (the "Private Placement Memorandum") and the agreements and
other materials referred to therein and has had the opportunity to ask questions
and receive answers concerning the terms and conditions of the transactions
contemplated by the Private Placement Memorandum.
4. The Purchaser acknowledges that the Certificate (and any Certificate
issued on transfer or exchange thereof) has not been registered or qualified
under the 1933 Act or the securities laws of any State or any other
jurisdiction, and that the Certificate cannot be resold unless it is registered
or qualified thereunder or unless an exemption from such registration or
qualification is available.
5. The Purchaser hereby undertakes to be bound by the terms and conditions
of the Pooling and Servicing Agreement in its capacity as an owner of a
Certificate or Certificates, as the case may be (each, a "Certificateholder"),
in all respects as if it were a signatory thereto. This undertaking is made for
the benefit of the Trust, the Certificate Registrar and all Certificateholders
present and future.
6. The Purchaser will not sell or otherwise transfer any portion of the
Certificate or Certificates, except in compliance with Section 5.02 of the
Pooling and Servicing Agreement.
7. Check one of the following:*
/__/ The Purchaser is a U.S. Person (as defined below) and it has
attached hereto an Internal Revenue Service ("IRS") Form W-9
(or successor form).
/__/ The Purchaser is not a U.S. Person and under applicable law in
effect on the date hereof, no taxes will be required to be
withheld by the Trustee (or its agent) with respect to
distributions to be made on the Certificate. The Purchaser has
attached hereto either (i) a duly executed IRS Form W-8 (or
successor form), which identifies such Purchaser as the
beneficial owner of the Certificate and states that such
Purchaser is not a U.S. Person or (ii) two duly executed
copies of IRS Form 4224 (or successor form), which identify
such Purchaser as the beneficial owner of the Certificate and
state that interest and original issue discount on the
Certificate and Permitted Investments is, or is expected to
be, effectively connected with a U.S. trade or business. The
Purchaser agrees to provide to the Certificate Registrar
updated IRS Forms W-8 or IRS Forms 4224, as the case may be,
any applicable successor IRS forms, or such other
certifications as the Certificate Registrar may reasonably
request, on or before the date that any such IRS form or
certification expires or becomes obsolete, or promptly after
the occurrence of any event requiring a change in the most
recent IRS form of certification furnished by it to the
Certificate Registrar.
- ----------
* Each Purchaser must include one of the two alternative certifications.
For this purpose, "U.S. Person" means a citizen or resident of the United States
for U.S. federal income tax purposes, a corporation, partnership or other entity
created or organized in or under the laws of the United States or any of its
political subdivisions, or an estate or trust the income of which is subject to
U.S. federal income taxation regardless of its source.
8. Please make all payments due on the Certificates:**
/__/ (a) by wire transfer to the following account at a bank or
entity in New York, New York, having appropriate facilities
therefore:
Bank: -----------------------------------
ABA#: -----------------------------------
Account #: -----------------------------
Attention: -----------------------------
/__/ (b) by mailing a check or draft to the following address:
-----------------------------------
-----------------------------------
-----------------------------------
Very truly yours,
----------------------------
[The Purchaser]
By:--------------------------
Name:
Title
Dated:
- ----------
** Only to be filled out by Purchasers of Definitive Certificates. Please select
(a) or (b). For holders of Definitive Certificates, wire transfers are only
available if such holder's Definitive Certificates have an aggregate Certificate
Balance or Notional Amount, as applicable, of at least U.S. $5,000,000.
<PAGE>
EXHIBIT D-1
FORM OF TRANSFER AFFIDAVIT
AFFIDAVIT PURSUANT TO
SECTION 860E(e)(4)
OF THE INTERNAL REVENUE
CODE OF 1986, AS
AMENDED
STATE OF )
) ss:
COUNTY OF )
[NAME OF OFFICER], being first duly sworn, deposes and says:
1. That [he] [she] is [Title of Officer] of [Name of Transferee] (the
"Transferee"), a [description of type of entity] duly organized and existing
under the laws of the [State of __________] [United States], on behalf of which
he makes this affidavit.
2. That the Transferee's Taxpayer Identification Number is [ ].
3. That the Transferee of a NationsLink Funding Corporation, Commercial
Mortgage Pass-Through Certificate, Series 1996-1, Class [R] [LR] Certificate
(the "Class [R] [LR] Certificate") is not a Disqualified Organization (as
defined below) or an agent thereof (including broker, nominee or other
middleman) (an "Agent") or a Non-U.S. Person (as defined below). For these
purposes, a "Disqualified Organization" means any of (i) the United States, any
State or political subdivision thereof, any possession of the United States, or
any agency or instrumentality of any of the foregoing (other than an
instrumentality which is a corporation if all of its activities are subject to
tax and, except for FHLMC, a majority of its board of directors is not selected
by such governmental unit), (ii) a foreign government, any international
organization, or any agency or instrumentality of any of the foregoing, (iii)
any organization (other than certain farmers' cooperatives described in Section
521 of the Code) which is exempt from the tax imposed by Chapter 1 of the Code
(including the tax imposed by Section 511 of the Code on unrelated business
taxable income), (iv) rural electric and telephone cooperatives described in
Section 1381(a)(2)(C) of the Code and (v) any other Person so designated by the
REMIC Administrator based upon an Opinion of Counsel that the holding of an
Ownership Interest in a Residual Certificate by such Person may cause either the
Upper-Tier REMIC or the Lower-Tier REMIC to fail to qualify as a REMIC or any
Person having an Ownership Interest in any Class of Certificates (other than
such Person) to incur a liability for any federal tax imposed under the Code
that would not otherwise be imposed but for the Transfer of an Ownership
Interest in a Residual Certificate to such Person. The terms "United States",
"State" and "international organization" shall have the meanings set forth in
Section 7701 of the Code or successor provisions. For these purposes, "Non-U.S.
Person" means any person other than a U.S. Person, unless, with respect to the
Transfer of a Residual Certificate, (i) such person holds such Residual
Certificate in connection with the conduct of a trade or business within the
United States and furnishes the Transferor and the Trustee with an effective
Internal Revenue Service Form 4224 or (ii) the Transferee delivers to both the
Transferor and the Trustee an opinion of a nationally recognized tax counsel to
the effect that such Transfer is in accordance with the requirements of the Code
and the regulations promulgated thereunder and that such Transfer of the
Residual Certificate will not be disregarded for federal income tax purposes.
4. That the Transferee historically has paid its debts as they have come
due and intends to pay its debts as they come due in the future and the
Transferee intends to pay taxes associated with holding the Class [R] [LR]
Certificate as they become due.
5. That the Transferee understands that it may incur tax liabilities with
respect to the Class [R] [LR] Certificate in excess of any cash flow generated
by the Class [R] [LR] Certificate.
6. That the Transferee agrees not to transfer the Class [R] [LR]
Certificate to any Person or entity unless (a) the Transferee has received from
such Person or entity an affidavit substantially in the form of this Transfer
Affidavit and (b) the Transferee provides to the Certificate Registrar a letter
substantially in the form of Exhibit D-2 to the Pooling and Servicing Agreement
certifying that it has no actual knowledge that such Person or entity is a
Disqualified Organization, an Agent thereof or a Non-U.S. Person and that it has
no reason to know that such Person or entity does not satisfy the requirements
set forth in paragraph 4 hereof.
7. That the Transferee agrees to such amendments of the Pooling and
Servicing Agreement dated as of May 1, 1996 among NationsLink Funding
Corporation, as Depositor, AMRESCO Management, Inc., as Master Servicer and
Special Servicer, The Chase Manhattan Bank, N.A, as Trustee and NationsBanc
Mortgage Capital Corporation, as REMIC Administrator (the "Pooling and Servicing
Agreement"), as may be required to further effectuate the restrictions on
transfer of the Class [R] [LR] Certificate to such a Disqualified Organization,
an Agent thereof, or a Non-U.S. Person. To the extent not defined herein, the
capitalized terms used herein shall have the meanings assigned thereto in the
Pooling and Servicing Agreement.
8. That, if a "tax matters person" is required to be designated with
respect to the [Upper-Tier REMIC] [Lower-Tier REMIC], the Transferee agrees to
act as "tax matters person" and to perform the functions of "tax matters person"
of the [Upper-Tier REMIC] [Lower-Tier REMIC] pursuant to Section 10.01(c) of the
Pooling and Servicing Agreement, and agrees to the irrevocable designation of
the REMIC Administrator as the Transferee's agent in performing the function of
"tax matters person."
9. The Transferee has reviewed, and agrees to be bound by and to abide by,
the provisions of Section 5.02(d) of the Pooling and Servicing Agreement
concerning registration of the transfer and exchange of Class [R] [LR]
Certificates.
IN WITNESS WHEREOF, the Transferee has caused this instrument to be
executed on its behalf, by its [Title of Officer] this _____ day of __________,
19__.
[NAME OF TRANSFEREE]
By: ___________________
[Name of Officer]
[Title of Officer]
<PAGE>
Personally appeared before me the above-named [Name of Officer], known or
proved to me to be the same person who executed the foregoing instrument and to
be the [Title of Officer] of the Transferee, and acknowledged to me that he
[she] executed the same as his [her] free act and deed and the free act and deed
of the Transferee.
Subscribed and sworn before me this ___ day of __________, 19__.
- --------------------------
NOTARY PUBLIC
COUNTY OF ----------------
STATE OF -----------------
My commission expires the ___ day of __________, 19__.
<PAGE>
EXHIBIT D-2
FORM OF TRANSFEROR LETTER
[Date]
[CERTIFICATE REGISTRAR]
Re: NationsLink Funding Corporation, Commercial Mortgage
Pass-Through Certificates, Series 1996-1
----------------------------------------------------
Ladies and Gentlemen:
[Transferor] has reviewed the attached affidavit of [Transferee], and has
no actual knowledge that such affidavit is not true and has no reason to know
that the requirements set forth in paragraphs 3 and 4 thereof are not satisfied
or that the information contained in paragraphs 3 and 4 thereof is not true.
Very truly yours,
[Transferor]
--------------------------
<PAGE>
EXHIBIT E
FORM OF UCC-1
[The paper version of this document contains a form of UCC-1 Financing
Statement for filing in the State of North Carolina at this location.]
<PAGE>
EXHIBIT A TO EXHIBIT E TO THE POOLING AGREEMENT
This Exhibit A is attached to and incorporated in a financing statement
pertaining to NationsLink Funding Corporation, as depositor (referred to as the
"Debtor" for the purpose of this financing statement only), and The Chase
Manhattan Bank, N.A., as trustee (referred to as the "Secured Party" for
purposes of this financing statement only), under that certain Pooling and
Servicing Agreement, dated as of May 1, 1996 (the "Pooling and Servicing
Agreement"), by and among the Debtor, AMRESCO Management, Inc., as master
servicer (the "Master Servicer"), AMRESCO Management, Inc., as special servicer,
NationsBanc Mortgage Capital Corporation, as REMIC Administrator, and the
Secured Party, relating to the issuance of the Debtor's Commercial Mortgage
Pass-Through Certificates, Series 1996-1 (collectively, the "Series 1996-1
Certificates"). Capitalized terms used herein and not defined shall have the
respective meanings given to them in the Pooling and Servicing Agreement. This
financing statement covers all of the Debtor's right (including the power to
convey title thereto), title and interest in and to the Trust Fund created by
the Pooling and Servicing Agreement, consisting of two segregated asset pools
(respectively, the "Upper-Tier REMIC" and the "Lower-Tier REMIC"). The assets of
the Upper-Tier REMIC consist primarily of the "regular interests" in the
Lower-Tier REMIC. The primary assets of the Lower-Tier REMIC consist of the
following:
1. the mortgage notes or other evidence of indebtedness of each borrower
(the "Mortgage Notes") with respect to the mortgage loans (the
"Mortgage Loans") listed on the Mortgage Loan Schedule attached as
Exhibit B to the Pooling and Servicing Agreement, which is attached to
this Exhibit A as Schedule 1;
2. the related mortgages, deeds of trust or other similar instruments
securing the Mortgage Loans (the "Mortgages");
3. with respect to each Mortgage Note and the related Mortgage(s), each
other document in the related Mortgage File;
4. (a) the Certificate Account required to be maintained by the Master
Servicer pursuant to the Pooling and Servicing Agreement, (b) all
funds from time to time on deposit in the Certificate Account, (c) the
investments of any such funds consisting of securities, instruments or
other obligations (including, without limitation, the Permitted
Investments described on Schedule 2 to this Exhibit A), and (d) the
general intangibles consisting of the contractual right to payment,
including, without limitation, the right to payments of principal and
interest and the right to enforce such payments, arising from or under
any such investments;
5. all REO Property;
6. (a) the REO Account required to be maintained by the Special Servicer
pursuant to the Pooling and Servicing Agreement, (b) all funds from
time to time on deposit in the REO Account, (c) the investments of any
such funds consisting of securities, instruments or other obligations
(including, without limitation, the Permitted Investments described on
Schedule 2 to this Exhibit A), and (d) the general intangibles
consisting of the contractual right to payment, including, without
limitation, the right to payments of principal and interest and the
right to enforce such payments, arising from or under any such
investments;
7. (a) the Lower-Tier Distribution Account and the Upper-Tier
Distribution Account required to be maintained by the Trustee pursuant
to the Pooling and Servicing Agreement, (b) all funds from time to
time on deposit in the Lower-Tier Distribution Account and the
Upper-Tier Distribution Account, (c) the investments of any such funds
consisting of securities, instruments or other obligations (including,
without limitation, the Permitted Investments described on Schedule 2
to this Exhibit A), and (d) the general intangibles consisting of the
contractual right to payment, including, without limitation, the right
to payments of principal and interest and the right to enforce such
payments, arising from or under any such investments;
8. all insurance policies, including the right to payments thereunder,
with respect to the Mortgage Loans required to be maintained pursuant
to the Pooling and Servicing Agreement;
9. all of the right, title and interest of the Debtor in, to and under
Sections 2, 3 and 8 of the Mortgage Loan Purchase Agreement; and
<PAGE>
10. all income, payments, products and proceeds of any of the foregoing,
together with any additions thereto or substitutions therefor.
THE DEBTOR AND THE SECURED PARTY INTEND THE TRANSACTIONS CONTEMPLATED BY
THE POOLING AND SERVICING AGREEMENT TO CONSTITUTE A SALE OF THE DEBTOR'S
INTEREST IN THE MORTGAGE NOTES, THE RELATED MORTGAGES AND THE OTHER DOCUMENTS IN
THE RELATED MORTGAGE FILES EVIDENCED BY THE SERIES 1996-1 CERTIFICATES, AND THIS
FILING SHOULD NOT BE CONSTRUED AS A CONCLUSION THAT A SALE HAS NOT OCCURRED. THE
REFERENCES HEREIN TO MORTGAGE NOTES SHOULD NOT BE CONSTRUED AS A CONCLUSION THAT
ANY MORTGAGE NOTE IS NOT AN INSTRUMENT WITHIN THE MEANING OF THE UNIFORM
COMMERCIAL CODE OR THAT A FILING IS NECESSARY TO PERFECT THE OWNERSHIP OR
SECURITY INTEREST OF THE SECURED PARTY IN ANY MORTGAGE NOTE, MORTGAGE OR OTHER
DOCUMENT IN A MORTGAGE FILE. IN ADDITION, THE REFERENCES HEREIN TO SECURITIES,
INSTRUMENTS AND OTHER OBLIGATIONS (INCLUDING, WITHOUT LIMITATION, PERMITTED
INVESTMENTS) SHOULD NOT BE CONSTRUED AS A CONCLUSION THAT ANY SECURITY,
INSTRUMENT OR OTHER OBLIGATION (INCLUDING, WITHOUT LIMITATION, ANY PERMITTED
INVESTMENT) IS NOT AN INSTRUMENT, A CERTIFICATED SECURITY OR AN UNCERTIFICATED
SECURITY WITHIN THE MEANING OF THE UNIFORM COMMERCIAL CODE, AS IN EFFECT IN ANY
APPLICABLE JURISDICTION, NOR SHOULD THIS FINANCING STATEMENT BE CONSTRUED AS A
CONCLUSION THAT A FILING IS NECESSARY TO PERFECT THE OWNERSHIP OR SECURITY
INTEREST OF THE SECURED PARTY IN THE CONTRACTUAL RIGHT TO PAYMENT, INCLUDING,
WITHOUT LIMITATION, THE RIGHT TO PAYMENTS OF PRINCIPAL AND INTEREST AND THE
RIGHT TO ENFORCE SUCH PAYMENTS, ARISING FROM OR UNDER ANY SECURITY, INSTRUMENT
OR OTHER OBLIGATION (INCLUDING, WITHOUT LIMITATION, ANY PERMITTED INVESTMENT).
WITH RESPECT TO THE FOREGOING, THIS FILING IS MADE ONLY IN THE EVENT OF CONTRARY
ASSERTIONS BY THIRD PARTIES.
<PAGE>
Schedule 1
Schedule 1 To Exhibit A To Exhibit E of the Pooling Agreement
[See Exhibit B to the Pooling Agreement]
<PAGE>
Schedule 2
Schedule 2 To Exhibit A To Exhibit E of the Pooling Agreement
The term "Permitted Investments" shall include any one or more of the
following obligations or securities, regardless whether issued by the Depositor,
the Master Servicer, the Special Servicer, the Trustee or any of their
respective Affiliates and having the required ratings, if any, provided for in
this definition:
(i) direct obligations of, and obligations fully guaranteed as to
timely payment of principal and interest by, the United States of
America, FNMA, FHLMC or any agency or instrumentality of the United
States of America the obligations of which are backed by the full
faith and credit of the United States of America; provided that any
obligation of, or guarantee by, FNMA or FHLMC, other than an unsecured
senior debt obligation of FNMA or FHLMC, shall be a Permitted
Investment only if such investment will be acceptable to each of the
Rating Agencies as evidenced in writing;
(ii) demand and time deposits, certificates of deposit, or
bankers' acceptances that mature in one year or less after the date of
issuance and are issued or held by any depository institution or trust
company incorporated or organized under the laws of the United States
of America or any State thereof and subject to supervision and
examination by federal or state banking authorities, so long as the
commercial paper or other short-term debt obligations of such
depository institution or trust company are rated at least "A-1+" by
S&P and "D-1+" by DCR or are otherwise acceptable to each of the
Rating Agencies or the long-term debt obligations of such depository
institution or trust company have the Certificate Rating;
(iii) any demand or time deposit or certificate of deposit that
is fully insured by FDIC;
(iv) repurchase agreements or obligations with respect to any
security described in clause (i) above where such security has a
remaining maturity of one year or less and where such repurchase
obligation has been entered into with a depository institution or
trust company (acting as principal) described in clause (ii) above;
(v) debt obligations bearing interest or sold at a discount
issued by any corporation incorporated under the laws of the United
States of America or any state thereof, which securities have ratings
from S&P and DCR at least equal to the highest long-term credit
ratings assigned by S&P and DCR, unless otherwise specified in writing
by each of the Rating Agencies; provided that securities issued by any
particular corporation will not be Permitted Investments to the extent
that investment therein will cause the then-outstanding principal
amount of securities issued by such corporation and held in the
accounts established hereunder to exceed 10% of the sum of the
aggregate principal balance and the aggregate principal amount of all
Permitted Investments in such accounts;
(vi) commercial paper (including both non-interest-bearing
discount obligations and interest-bearing obligations payable on
demand or on a specified date maturing in one year or less after the
date of issuance thereof and which is rated at least "A-1+" by S&P and
"D-1+" by DCR;
(vii) units of investment funds, including money market funds,
rated in the highest category by S&P and by DCR;
(viii) certificates or receipts representing ownership interests
in future interest or principal payments on obligations described in
clause (i) above and the Rating Agencies have confirmed in writing
that such investments will not lead to the downgrading, withdrawal or
qualification of any rating then assigned by the Rating Agencies to
any Certificate; and
(ix) any other demand, money market or time deposit, obligation,
security or investment, (A) with respect to which each Rating Agency
shall have confirmed in writing that such investment will not result
in a downgrade, qualification or withdrawal of the then-current rating
of the Certificates that are currently being rated by such Rating
Agency and (B) which qualifies as a "cash flow investment" pursuant to
Section 860G(a)(6) of the Code;
provided, however, that in each case, if the investment is rated by S&P, (A) it
shall not have an "r" highlighter affixed to its rating from S&P, (B) it shall
have a predetermined fixed dollar of principal due at maturity that cannot vary
or change and (C) any such investment that provides for a variable rate of
interest must have an interest rate that is tied to a single interest rate index
plus a fixed spread, if any; and provided, further, however, that no such
instrument shall be a Permitted Investment (A) if such instrument evidences
principal and interest payments derived from obligations underlying such
instrument and the interest payments with respect to such instrument provide a
yield to maturity of greater than 120% of the yield to maturity at par of such
underlying obligations or (B) if such instrument may be redeemed at a price
below the purchase price; and provided, further, however, that no amount
beneficially owned by either the Upper-Tier REMIC or the Lower-Tier REMIC (even
if not yet deposited in the Trust) may be invested in investments (other than
money market funds) treated as equity interests for federal income tax purposes,
unless the Master Servicer receives an Opinion of Counsel, at its own expense,
to the effect that such investment will not adversely affect the status of
either the Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC under the Code or
result in imposition of a tax on any such Upper-Tier REMIC or Lower-Tier REMIC.
Permitted Investments that are subject to prepayment or call may not be
purchased at a price in excess of par.
<PAGE>
EXHIBIT F
REQUEST FOR RELEASE
__________[Date]
[TRUSTEE]
Re: NationsLink Funding Corporation
Commercial Mortgage Pass-Through Certificates, Series 1996-1,
REQUEST FOR RELEASE
-------------------------------------------------------------
Dear -----------------,
In connection with the administration of the Mortgage Files held by or on
behalf of you as Trustee under a certain Pooling and Servicing Agreement dated
as of April __, 1996 (the "Pooling and Servicing Agreement"), by and among
NationsLink Funding Corporation, as depositor, NationsBanc Mortgage Capital
Corporation, as REMIC Administrator, [the undersigned, as master servicer ("the
Master Servicer"), AMRESCO Management, Inc., as special servicer,] [AMRESCO
Management, Inc., as master servicer, the undersigned, as special servicer (the
"Special Servicer"),] and you, as trustee, the undersigned hereby requests a
release of the Mortgage File (or the portion thereof specified below) held by or
on behalf of you as Trustee with respect to the following described Mortgage
Loan for the reason indicated below.
Mortgagor's Name:
Address:
Loan No.:
If only particular documents in the Mortgage File are requested, please specify
which:
Reason for requesting file (or portion thereof):
______ 1. Mortgage Loan paid in full. The [Master Servicer]
[Special Servicer] hereby certifies that all amounts
received in connection with the Mortgage Loan have been
or will be credited to the Certificate Account pursuant
to the Pooling and Servicing Agreement.
______ 2. The Mortgage Loan is being foreclosed.
______ 3. Other. (Describe)
<PAGE>
The undersigned acknowledges that the above Mortgage File (or requested
portion thereof) will be held by the undersigned in accordance with the
provisions of the Pooling and Servicing Agreement and will be returned to you or
your designee within ten (10) days of our receipt thereof, unless the Mortgage
Loan has been paid in full, in which case the Mortgage File (or such portion
thereof) will be retained by us permanently, or unless the Mortgage Loan is
being foreclosed, in which case the Mortgage File (or such portion thereof) will
be returned when no longer required by us for such purpose.
Capitalized terms used but not defined herein shall have the meanings
ascribed to them in the Pooling and Servicing Agreement.
[MASTER SERVICER][SPECIAL SERVICER]
By:--------------------------------
Name:--------------------------
Title:-------------------------
<PAGE>
EXHIBIT G
FORM OF ERISA REPRESENTATION LETTER
The Chase Manhattan Bank, N.A.,
as Trustee and Certificate Registrar
Four Chase MetroTech Center
Brooklyn, New York 11245
Attention: Global Trust Services
NationsLink Funding Corporation
100 North Tryon Street
Charlotte, North Carolina 28255
Attention: S. Trezevant Moore with a
copy to Robert W. Long, Esq.
Re: Transfer of NationsLink Funding Corporation, Commercial
Mortgage Pass-Through Certificates, Series 1996-1
---------------------------------------------------------
Ladies and Gentlemen:
The undersigned (the "Purchaser") proposes to purchase $------------
initial Certificate Balance of NationsLink Funding Corporation, Commercial
Mortgage Pass-Through Certificates, Series 1996-1, Class -- (the "Certificate")
issued pursuant to that certain Pooling and Servicing Agreement, dated as of May
1, 1996 (the "Pooling and Servicing Agreement"), by and among NationsLink
Funding Corporation, as depositor (the "Depositor"), AMRESCO Management, Inc.,
as master servicer (the "Master Servicer"), AMRESCO Management, Inc., as special
servicer (the "Special Servicer"), NationsBanc Mortgage Capital Corporation, as
REMIC administrator (the "REMIC Administrator") and The Chase Manhattan Bank,
N.A., as trustee (the "Trustee"). Capitalized terms used and not otherwise
defined herein have the respective meanings ascribed to such terms in the
Pooling and Servicing Agreement.
In connection with such transfer, the undersigned hereby represents and
warrants to you as follows:
1. The Purchaser is not (a)(i) an employee benefit plan subject to the
fiduciary responsibility provisions of ERISA, (ii) a plan subject to Section
4975 of the Code or (iii) any governmental plan, as defined in Section 3(32) of
ERISA, subject to any federal, state or local law ("Similar Law") which is, to a
material extent, similar to the foregoing provisions of ERISA or the Code (a
"Plan"), (b) a collective investment fund in which such Plans are invested, (c)
an insurance company using assets of separate accounts or general accounts which
include assets of Plans (or which are deemed pursuant to ERISA or any Similar
Law to include assets of Plans) or (d) a person or entity acting on behalf of a
Plan or using the assets of a Plan, other than an insurance company using assets
of its general account under circumstances whereby the purchase of Subordinate
Certificates or Residual Certificates by such insurance company (i) would not
constitute a prohibited transaction within the meaning of Section 406 or 407 of
ERISA, Section 4975 of the Code, or a materially similar characterization under
any Similar Law or (ii) satisfies a "prohibited transaction exemption" ("PTE"),
such as Section III of PTE 95-60.
2. The Purchaser understands that if the Purchaser is a Person referred to
in 1(a), (b), (c) or (d) above, such Purchaser is required to provide to the
Depositor, the Trustee and the Certificate Registrar an Opinion of Counsel which
establishes to the satisfaction of the Depositor and the Trustee that the
acquisition and holding of such Certificate by such purchaser or transferee
(without regard to the identity or nature of the other Holders of Certificates
of any Class) will not constitute or result in a "prohibited transaction" within
the meaning of Section 406 of ERISA or Section 4975 of the Code, and will not
subject the Trustee, the Certificate Registrar, the Master Servicer, the Special
Servicer, the Extension Adviser, the Underwriter or the Depositor to any
obligation or liability under ERISA or Section 4975 of the Code, which Opinion
of Counsel shall not be at the expense of the Depositor, the Master Servicer,
the Special Servicer, the Trustee or the Trust Fund.
<PAGE>
IN WITNESS WHEREOF, the Purchaser hereby executes this ERISA Representation
Letter on the ---th day of -----, ----.
Very truly yours,
---------------------------------
[Purchaser]
By: ---------------------------
Name:
Title:
<PAGE>
EXHIBIT H
FORM OF COLLECTION REPORT
AMRESCO Management, Inc.
NationsLink Funding Corporation
Commercial Mortgage Pass-Through Certificates - Series 1996-1
May 18, 1996 TOTAL SERIES
1. SCHEDULED PRINCIPAL BALANCE AT 4/15/96
2. SCHEDULED MONTHLY INTEREST PAYMENTS DUE 4/02/96-5/01/96
3. SCHEDULED MONTHLY PRINCIPAL PAYMENTS DUE 4/02/96-5/01/96
4. PRINCIPAL PREPAYMENTS RECEIVED 4/16/96-5/15/96
5. PRINCIPAL PORTION OF LIQUIDATIONS AND PAYOFFS RECEIVED 4/16/96-5/15/96
6. SCHEDULED PRINCIPAL BALANCE OF LOANS REPURCHASED 4/16/96-5/15/96
7. FOR LOANS MODIFIED OR FORECLOSED 4/16/96-5/15/96. EXCESS SCHEDULED PRINCIPAL
BALANCE OVER DISCOUNTED PRINCIPAL BALANCE
8. REDUCTION IN PRINCIPAL AS A RESULT OF BANKRUPTCY DEFICIENCY VALUATION
4/16/96-5/15/96
9. SCHEDULED NEGATIVE AMORTIZATION ADDED TO LOAN BALANCES
10. ADJUSTMENTS TO SCHEDULED PRINCIPAL
11. SCHEDULED PRINCIPAL BALANCE AT 5/15/96 [ITEM (1) ABOVE MINUS SUM OF (3)
THROUGH (8)PLUS (9)AND (10]
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DELINQUENCY INFORMATION
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TOTAL
1 MONTH DELINQUENT
2 OR MORE MONTHS DELINQUENT
IN FORECLOSURE
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
REO INFORMATION
- --------------------------------------------------------------------------------
TOTAL
FUNDS DEPOSITED INTO REO ACCOUNT
NUMBER OF REO PROPERTIES
BLOCK VALUES OF ANY REO PROPERTY
ACCRUED AND UNPAID INTEREST DUE
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THE INFORMATION IN THIS REMITTANCE REPORT IS TAKEN FROM RECORDS OF OR
AVAILABLE TO AMRESCO AND IS BELIEVE BY AMRESCO TO BE CORRECT IN ALL MATERIAL
RESPECTS, BUT NO REPRESENTATION OR WARRANTY IS MADE WITH RESPECT THERETO.
<PAGE>
NationsLink Funding Corporation Series -- 1996-1
AVAILABLE FUNDS
COLLECTION ACCOUNT DEPOSITS
---------------------------
TOTAL SERIES
12. PAID IN ADVANCES FROM PRIOR PERIOD, PASSED THROUGH THIS PERIOD
(4/02/96-5/01/96)
(A) PRINCIPAL
(B) INTEREST
13. COLLECTED MONTHLY PAYMENTS DUE CURRENT PERIOD 4/02/96-5/01/96 COLLECTED
THROUGH 5/15/96
(A) PRINCIPAL
(B) INTEREST
14. COLLECTED MONTHLY PAYMENTS DUE PRIOR PERIODS BEFORE 4/01/96, COLLECTED
THROUGH 5/15/96
(A) PRINCIPAL
(B) INTEREST
15. COLLECTED MONTHLY PAYMENTS DUE 5/02/96 & SUBSQ. (PREPAIDS) - COLLECTED
THROUGH 5/15/96
(A) PRINCIPAL
(B) INTEREST
16. PREPAYMENTS RECEIVED 4/16/96-5/15/96
17. LIQUIDATIONS/PAYOFFS 4/16/96-5/15/96 (A) SCHEDULED PRINCIPAL BALANCE (B)
ACTUAL INTEREST
18. LOANS REPURCHASED 4/16/96 - 5/15/96
(A) PRINCIPAL
(B) INTEREST
19. PREPAYMENT PREMIUM
20. P&I ADVANCES
COLLECTION ACCOUNT WITHDRAWALS
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21. MASTER SERVICER FEE
22. DIRECT EXP. ON BEHALF OF TRUST FUND
23. REIMBURSE ADVANCES BY MASTER SERVICER
24. REIMBURSEMENT OF P&I ADVANCES
25. REIMBURSEMENT OF INTEREST ON P&I ADVANCES
26. SPECIAL SERVICER BASIC FEE
27. REIMBURSE ADVANCES BY SPECIAL SERVICER
28. SPECIAL SERVICER W/O & INCREMENTAL FEE
29. TRUSTEE FEE
EXHIBIT 2 TO FORM 8-K
[LETTERHEAD OF CADWALADER, WICKERSHAM & TAFT]
May 16, 1996
NationsBanc Capital Markets, Inc.
100 North Tryon Street
Charlotte, North Carolina 28255
NationsLink Funding Corporation
100 North Tryon Street
Charlotte, North Carolina 28255
Re: NationsLink Funding Corporation, Commercial Mortgage
Pass-Through Certificates, Series 1996-1
Ladies and Gentlemen:
We are rendering this opinion letter pursuant to Section 6(b) of that
certain Underwriting Agreement, dated May 2, 1996 (the "Underwriting
Agreement"), by and between NationsLink Funding Corporation, a Delaware
corporation ("NFC"), and NationsBanc Capital Markets, Inc., a North Carolina
corporation ("NCMI"), as underwriter (in such capacity, the "Underwriter"), and
Section 3(e) of that certain Private Placement Agency Agreement, dated May 15,
1996 (the "Placement Agreement"), by and between NFC and NCMI, as placement
agent (in such capacity, the "Placement Agent"). We have acted as special
counsel to NFC and the Underwriter and Placement Agent in connection with (i)
the issuance of NFC's Commercial Mortgage Pass-Through Certificates, Series
1996-1 (the "Certificates"), consisting of fourteen classes: the Class A-1
Certificates, the Class A-2 Certificates, the Class A-3 Certificates, the Class
IO Certificates, the Class B Certificates, the Class C Certificates, the Class D
Certificates, the Class E Certificates, the Class F Certificates, the Class G
Certificates, the Class H Certificates, the Class UR Certificates, the Class R
Certificates and the Class LR Certificates; (ii) the sale by NFC and the
purchase by the Underwriter pursuant to the Underwriting Agreement of the Class
A-1, the Class A-2, the Class A-3, the Class B, the Class C, the Class D and the
Class E Certificates (collectively, the "Publicly Offered Certificates"); and
(iii) the sale by NFC through the Placement Agent pursuant to the Placement
Agreement of the Class IO, the Class F, the Class G, the Class H and the Class
UR Certificates (collectively, the "Privately Placed Certificates").
The Certificates are being issued pursuant to that certain Pooling and
Servicing Agreement, dated as of May 1, 1996 (the "Pooling and Servicing
Agreement"), by and among NFC, as depositor, AMRESCO Management, Inc., as master
servicer and as special servicer, The Chase Manhattan Bank N.A., as trustee (the
"Trustee"), and NationsBanc Mortgage Capital Corporation, as REMIC administrator
(the "REMIC Administrator"). Capitalized terms used and not otherwise defined
herein have the meanings given to them in the Pooling and Servicing Agreement.
The Certificates will evidence beneficial ownership interests in a trust fund
(the "Trust Fund") the assets of which will consist of a pool of mortgage loans
identified on Exhibit B to the Pooling and Servicing Agreement, together with
certain related assets.
In rendering the opinion set forth below, we have examined and relied upon
originals, copies or specimens, certified or otherwise identified to our
satisfaction, of the Pooling and Servicing Agreement, the Prospectus Supplement
and Prospectus each dated May 2, 1996 and relating to the Publicly Offered
Certificates, the Private Placement Memorandum dated May 15, 1996 relating to
the Privately Placed Certificates, specimen forms of the Certificates, and such
certificates, corporate records and other documents, agreements, opinions and
instruments, including, among other things, those delivered at the closing of
the purchase and sale of the Certificates, as we have deemed necessary as a
basis for such opinion hereinafter expressed. In connection with such
examination, we have assumed the genuineness of all signatures, the authenticity
of all documents, agreements and instruments submitted to us as originals, the
conformity to original documents, agreements and instruments of all documents,
agreements and instruments submitted to us as copies or specimens, the
conformity of the text of each document filed with the Securities the Securities
and Exchange Commission through the EDGAR system to the printed document
reviewed by us, the authenticity of the originals of such documents, agreements
and instruments submitted to us as copies or specimens, and the accuracy of the
matters set forth in the documents, agreements and instruments we reviewed. As
to any facts material to such opinion that were not known to us, we have relied
upon statements, certificates and representations of officers and other
representatives of NFC, the Trustee, the REMIC Administrator and NCMI and of
public officials.
In rendering the opinion below, we do not express any opinion concerning
the laws of any jurisdiction other than the substantive federal laws of the
United States of America.
Based upon and subject to the foregoing, we are of the opinion that,
assuming that the elections required by Section 860D(b) of the Internal Revenue
Code of 1986, as amended (the "Code"), are properly made, and assuming that the
Trust Fund is administered in compliance with the Pooling and Servicing
Agreement as in effect on the Closing Date, and with any subsequent changes in
the law, including any amendments to the Code or applicable Treasury regulations
thereunder, (a) the Upper-Tier REMIC and Lower-Tier REMIC will each qualify for
treatment for federal income tax purposes as a "real estate mortgage investment
conduit", as defined in Section 860D of the Code; (b) the Class A-1, Class A-2,
Class A-3, Class IO, Class B, Class C, Class D, Class E, Class F, Class G, Class
H and Class UR Certificates will constitute "regular interests" in the
Upper-Tier REMIC and the Class R Certificates will constitute the sole class of
"residual interests" in the Upper-Tier REMIC within the meaning of the Code; and
(c) the Class LA-1 Uncertificated Interest, Class LA-2 Uncertificated Interest,
Class LA-3 Uncertificated Interest, Class LWAC Uncertificated Interest, Class LB
Uncertificated Interest, Class LC Uncertificated Interest, Class LD
Uncertificated Interest, Class LE Uncertificated Interest, Class LF
Uncertificated Interest, Class LG Uncertificated Interest, Class LH
Uncertificated Interest and Class LUR Uncertificated Interest will constitute
"regular interests" in the Lower-Tier REMIC and the Class LR Certificates will
constitute the sole class of "residual interests" in the Lower-Tier REMIC within
the meaning of the Code.
We are furnishing this letter to you solely for your benefit in connection
with the transactions referred to herein. This letter is not to be relied upon,
used, circulated, quoted or otherwise referred to by any other person or for any
other purpose without our prior written consent.
Very truly yours,
