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: April 7, 1998
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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 333-43609 56-1950039
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(State or Other (Commission (I.R.S. Employer
Jurisdiction of File Number) Identification No.)
Incorporation)
NationsBank Corporate Center, 100 North Tryon Street, Charlotte, NC 28255
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (704) 386-2400
<PAGE>
Item 5. Other Events.
Attached as Exhibit 4 is the Amended and Restated Pooling and Servicing
Agreement (as defined below) for the NationsLink Funding Corporation, Commercial
Mortgage Pass-Through Certificates, Series 1998-1 (the "Certificates"). On March
25, 1998, NationsLink Funding Corporation (the "Company") caused the issuance,
pursuant to a Amended and Restated Pooling and Servicing Agreement, dated as of
March 1, 1998 (the "Pooling and Servicing Agreement"), by and among the Company,
as depositor, NationsBank, N.A., as mortgage loan seller, Midland Loan Services,
L.P., as master servicer, Lennar Partners, Inc., as special servicer, and
Norwest Bank Minnesota, National Association, as trustee and REMIC
Administrator, of the Certificates, issued in sixteen classes. The Class A-1,
Class A-2, Class A-3, Class X-1, Class X-2, Class B, Class C, Class D, and Class
E Certificates (the "Publicly Offered Certificates"), with an aggregate
principal balance as of March 1, 1998 (the "Cut-Off Date") of $898,128,487, were
sold to NationsBanc Montgomery Securities LLC ("NationsBanc Montgomery")
pursuant to an Underwriting Agreement, dated March 9, 1998, by and between
NationsBanc Montgomery, as underwriter, and the Company.
Attached as Exhibit 8 is the opinion of Cadwalader, Wickersham & Taft,
special tax counsel to the Company, regarding tax matters (the "Tax Matters
Opinion"), provided in connection with the issuance of the Certificates.
Capitalized terms used herein and not defined herein have the same meanings
ascribed to such terms in the Pooling and Servicing Agreement.
Item 7. Financial Statements, Pro Forma Financial Information and Exhibits
(c) Exhibits
Exhibit 4 Pooling and Servicing Agreement
Exhibit 8 Tax Matters Opinion
<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/ John T. McCarthy
--------------------
Name: John T. McCarthy
Title: Senior Vice President
Date: April 7, 1998
<PAGE>
Exhibit Index
Item 601(a) of Regulation
S-K Exhibit No. Description
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4 Pooling and Servicing Agreement
8 Tax Matters Opinion
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NATIONSLINK FUNDING CORPORATION,
Depositor,
NATIONSBANK, N.A.,
Mortgage Loan Seller,
MIDLAND LOAN SERVICES, L.P.,
Master Servicer,
LENNAR PARTNERS, INC.,
Special Servicer,
and
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION,
Trustee and REMIC Administrator,
---------------------------------
AMENDED AND RESTATED
POOLING AND SERVICING AGREEMENT
Dated as of March 1, 1998
---------------------------------
$1,020,600,557
Commercial Mortgage Pass-Through Certificates
Series 1998-1
================================================================================
<PAGE>
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS; CERTAIN CALCULATIONS IN RESPECT OF
THE MORTGAGE POOL AND THE CERTIFICATES
1.01 Defined Terms
1.02 Certain Calculations in Respect of the Mortgage Pool
1.03 Relationship to Original Trust Agreement
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS; REPRESENTATIONS AND WARRANTIES;
ORIGINAL ISSUANCE OF CERTIFICATES
2.01 Conveyance of Mortgage Loans
2.02 Acceptance of REMIC I by Trustee
2.03 Mortgage Loan Seller's Repurchase of Mortgage Loans for Document Defects
and Certain Breaches of Representations and Warranties
2.04 Representations and Warranties of the Depositor
2.05 Representations and Warranties of the Mortgage Loan Seller
2.06 Representations and Warranties of the Master Servicer
2.07 Representations and Warranties of the Special Servicer
2.08 Representations and Warranties of the Trustee and the REMIC Administrator
2.09 Issuance of the Class R-I Certificates; Creation of the REMIC I
Regular Interests
2.10 Conveyance of REMIC I Regular Interests; Acceptance of REMIC II
by the Trustee
2.11 Issuance of the REMIC II Certificates.
ARTICLE III
ADMINISTRATION AND SERVICING OF THE TRUST FUND
3.01 Administration of the Mortgage Loans
3.02 Collection of Mortgage Loan Payments
3.03 Collection of Taxes, Assessments and Similar Items;
Servicing Accounts; Reserve Accounts
3.04 Certificate Account, the Distribution Account and the REMIC II
Distribution Account
3.05 Permitted Withdrawals From the Certificate Account and the Distribution
Account
3.06 Investment of Funds in the Certificate Account and the REO Account
3.07 Maintenance of Insurance Policies; Errors and Omissions and
Fidelity Coverage
3.08 Enforcement of Due-On-Sale Clauses; Assumption Agreements;
Subordinate Financing
3.09 Realization Upon Defaulted Mortgage Loans
3.10 Trustee to Cooperate; Release of Mortgage Files
3.11 Servicing Compensation; Interest on Servicing Advances; Payment of
Certain Expenses; Obligations of the Trustee Regarding Back-up
Servicing Advances
3.12 Inspections; Collection of Financial Statements
3.13 Annual Statement as to Compliance
3.14 Reports by Independent Public Accountants
3.15 Access to Certain Information
3.16 Title to REO Property; REO Account
3.17 Management of REO Property
3.18 Sale of Mortgage Loans and REO Properties
3.19 Additional Obligations of the Master Servicer and the Special Servicer
3.20 Modifications, Waivers, Amendments and Consents
3.21 Transfer of Servicing Between Master Servicer and Special Servicer;
Record Keeping; Asset Status Report
3.22 Sub-Servicing Agreements
3.23 Designation of Special Servicer by the Majority Certificateholder
of the Controlling Class
3.24 Confidentiality
3.25 No Solicitation of Prepayments
ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS AND RELATED MATTERS
4.01 Distributions on the Certificates
4.02 Statements to Certificateholders; Certain Reports by the Master
Servicer and the Special Servicer
4.03 P&I Advances
4.04 Allocation of Realized Losses and Additional Trust Fund
ARTICLE V
THE CERTIFICATES
5.01 The Certificates
5.02 Registration of Transfer and Exchange of Certificates
5.03 Book-Entry Certificates
5.04 Mutilated, Destroyed, Lost or Stolen Certificates
5.05 Persons Deemed Owners
5.06 Certification by Certificate Owners
ARTICLE VI
THE DEPOSITOR, THE MORTGAGE LOAN SELLER, THE MASTER SERVICER,
THE SPECIAL SERVICER AND THE REMIC ADMINISTRATOR
6.01 Liability of the Depositor, the Mortgage Loan Seller, the Master Servicer,
the Special Servicer and the REMIC Administrator
6.02 Merger, Consolidation or Conversion of the Depositor, the Mortgage Loan
Seller, the Master Servicer, the Special Servicer or the REMIC
Administrator
6.03 Limitation on Liability of the Depositor, the Master Servicer, the
Special Servicer, the REMIC Administrator and Others.
6.04 Master Servicer, Special Servicer and REMIC Administrator Not to Resign.
6.05 Rights of the Depositor and the Trustee in Respect of the Master
Servicer, the Special Servicer and the REMIC Administrator.
ARTICLE VII
DEFAULT
7.01 Events of Default
7.02 Trustee to Act; Appointment of Successor
7.03 Notification to Certificateholders
7.04 Waiver of Events of Default
7.05 Additional Remedies of Trustee Upon Event of Default
ARTICLE VIII
CONCERNING THE TRUSTEE
8.01 Duties of Trustee
8.02 Certain Matters Affecting the Trustee
8.03 Trustee Not Liable for Validity or Sufficiency of
Certificates or Mortgage Loans
8.04 Trustee May Own Certificates
8.05 Fees of Trustee; Indemnification of Trustee
8.06 Eligibility Requirements for Trustee
8.07 Resignation and Removal of the Trustee
8.08 Successor Trustee
8.09 Merger or Consolidation of Trustee
8.10 Appointment of Co-Trustee or Separate Trustee
8.11 Appointment of Custodians
8.12 Access to Certain Information
8.13 Filings with the Securities and Exchange Commission
ARTICLE IX
TERMINATION
9.01 Termination Upon Repurchase or Liquidation of All Mortgage Loans
9.02 Additional Termination Requirements
ARTICLE X
ADDITIONAL REMIC PROVISIONS
10.01 REMIC Administration
10.02 Depositor, Master Servicer, Special Servicer and Trustee to
Cooperate with REMIC Administrator
10.03 Fees of the REMIC Administrator
10.04 Use of Agents
ARTICLE XI
MISCELLANEOUS PROVISIONS
11.01 Amendment
11.02 Recordation of Agreement; Counterparts
11.03 Limitation on Rights of Certificateholders
11.04 Governing Law
11.05 Notices
11.06 Severability of Provisions
11.07 Successors and Assigns; Beneficiaries
11.08 Article and Section Headings
11.09 Notices to and from Rating Agencies
<PAGE>
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 X-1 Certificate
EXHIBIT A-5 Form of Class X-2 Certificate
EXHIBIT A-6 Form of Class B Certificate
EXHIBIT A-7 Form of Class C Certificate
EXHIBIT A-8 Form of Class D Certificate
EXHIBIT A-9 Form of Class E Certificate
EXHIBIT A-10 Form of Class F Certificate
EXHIBIT A-11 Form of Class G Certificate
EXHIBIT A-12 Form of Class H Certificate
EXHIBIT A-13 Form of Class J Certificate
EXHIBIT A-14 Form of Class K Certificate
EXHIBIT A-15 Form of Class R-I Certificate
EXHIBIT A-16 Form of Class R-II Certificate
EXHIBIT B Form of Investment Representation Letter
EXHIBIT C-1 Form of Transfer Affidavit and Agreement Pursuant
to Section 5.02(d)(i)(B)
EXHIBIT C-2 Form of Transferor Certificate Pursuant
to Section 5.02(d)(i)(D)
EXHIBIT D Request for Release
EXHIBIT E Form of REO Status Report
EXHIBIT F Form of ERISA Representation Letter
SCHEDULE I Mortgage Loan Schedule
SCHEDULE II Sub-Servicing Agreements in Effect as
of the Closing Date
SCHEDULE III Schedule of Modified Mortgage Loans
SCHEDULE IV Schedule of Mortgage Loans Permitting Future
Subordinate Liens on Mortgaged Properties
SCHEDULE V Schedule of Exceptions to Mortgage File Delivery
<PAGE>
This Amended and Restated Pooling and Servicing Agreement (this
"Agreement"), is dated and effective as of March 1, 1998, among NATIONSLINK
FUNDING CORPORATION, as Depositor, NATIONSBANK, N.A., as Mortgage Loan Seller,
MIDLAND LOAN SERVICES, L.P., as Master Servicer, LENNAR PARTNERS, INC., as
Special Servicer, and NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION, as Trustee
and as REMIC Administrator.
PRELIMINARY STATEMENT:
This Agreement amends, restates and supersedes in its entirety the
Pooling and Servicing Agreement, dated February 12, 1998, among NationsBanc
Mortgage Capital Corporation ("NMCC"), the Depositor and the Trustee (the
"Original Trust Agreement"). The formation of the Trust pursuant to the Original
Trust Agreement in advance of the Delivery Date was effected as an
administrative convenience in order to facilitate the timely assignment to the
Trustee of the Mortgage Loans that had been originated or acquired by NMCC prior
to the effective date of the Merger and Assignment described below (such
Mortgage Loans, the "NMCC Mortgage Loans"). Under the Original Trust Agreement,
NMCC, as the sole beneficiary of the Trust, retained the entire beneficial
interest in the Mortgage Loans and the other assets of the Trust, all
responsibility for their servicing and administration, and custody of all
related documents. On February 17, 1998, NMCC merged with and into NB Holdings
Corporation, which then assigned all of NMCC's rights and obligations, including
all its rights and obligations in respect of the NMCC Mortgage Loans under the
Original Trust Agreement and its 100% ownership of the Depositor, to the
Mortgage Loan Seller (such transactions, the "Merger and Assignment"). As a
result of the Merger and Assignment, the Mortgage Loan Seller became the
successor to NMCC in all respects as regards the NMCC Mortgage Loans, and the
Depositor became a wholly-owned subsidiary of the Mortgage Loan Seller.
Effective on the Delivery Date, the Original Trust Agreement will be amended and
restated by this Agreement. The Mortgage Loan Seller will transfer any remaining
Mortgage Loans (the "NationsBank Mortgage Loans") to the Depositor, which will
in turn transfer such Mortgage Loans to the Trust, in each case on or prior to
the Delivery Date, and in accordance with this Agreement, the Mortgage Loan
Seller and the Depositor will make certain representations and warranties and be
required to deliver certain documents and take such other actions in respect of
all the Mortgage Loans. The Mortgage Loan Seller will also transfer its 100%
beneficial interest in the Trust to the Depositor on the Delivery Date, and on
and after such date such interest will be represented solely by the Certificates
(in the aggregate) in accordance with this Agreement.
The Depositor intends to sell Certificates, to be issued hereunder in
multiple Classes, which in the aggregate will evidence the entire beneficial
ownership interest in the Trust to be created hereunder.
As provided herein, the Trustee will elect that the Trust Fund be
treated for federal income tax purposes as two separate real estate mortgage
investment conduits ("REMIC I" and the "REMIC II," respectively). The Class A-1,
Class A-2, Class A-3, Class X-1, Class X-2, Class B, Class C, Class D, Class E,
Class F, Class G, Class H, Class J and Class K Certificates constitute "regular
interests" in REMIC II, and the Class R-II Certificates constitute the sole
class of "residual interest" in REMIC II for purposes of the REMIC Provisions.
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 LJ, Class LK, Class LWAC-1 and Class LWAC-2
Uncertificated Interests constitute "regular interests" in REMIC I and the Class
R-II Certificates constitute the sole class of "residual interest" in REMIC I
created hereunder for purposes of the REMIC Provisions.
The following table sets forth the designation, the Pass-Through Rate,
and the Initial Class Principal Balance for each of the Classes of REMIC II
Regular Certificates.
Initial Class
Designation Pass-Through Rate Principal Balance
- ----------- ----------------- -----------------
Class A-1 6.484% per annum $199,017,108
Class A-2 6.425% per annum $81,648,044
Class A-3 6.395% per annum $433,755,237
Class X-1 Variable (1) N/A(2)
Class X-2 Variable (1) N/A(3)
Class B 6.436% per annum $53,581,529
Class C 6.648% per annum $56,133,030
Class D 6.803% per annum $48,478,526
Class E 7.300% per annum $25,515,013
Class F 7.050% per annum $51,030,027
Class G 5.000% per annum $10,206,005
Class H 5.000% per annum $25,515,013
Class J 5.000% per annum $12,247,206
Class K 5.000% per annum $23,473,819
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[FN]
(1) Calculated in accordance with the definition of "Pass-Through Rate".
(2) The Class X-1 Certificates will not have a Class Principal Balance;
rather, such Class of Certificates will accrue interest as provided
herein on a Class Notional Amount that is, as of any date of
determination, equal to the Uncertificated Principal Balance of the
Class LWAC-1 Uncertificated Interest, which corresponds to 99.99% of
the aggregate Certificate Balance of the Class A Certificates.
(3) The Class X-2 Certificates will not have a Class Principal Balance;
rather, such Class of Certificates will accrue interest as provided
herein on a Class Notional Amount that is, as of any date of
determination, equal to the Uncertificated Principal Balance of the
Class LWAC-2 Uncertificated Interest, which corresponds to 99.99% of
the aggregate Certificate Balance of the Classes of Sequential Pay
Certificates other than the Class A Certificates.
The initial Uncertificated Principal Balances and per annum rates of
interest for the REMIC I Regular Interests are set forth in Section 4.01(c)(i).
The Class R-I and Class R-II Certificates will be Residual Certificates bearing
no Pass-Through Rate and having no initial Certificate Principal Balances.
In consideration of the mutual agreements herein contained, the
Depositor, the Mortgage Loan Seller, the Master Servicer, the Special Servicer,
the Trustee and the REMIC Administrator agree as follows:
<PAGE>
ARTICLE I
DEFINITIONS; CERTAIN CALCULATIONS IN RESPECT OF THE MORTGAGE POOL
AND THE CERTIFICATES
SECTION 1.01 Defined Terms
Whenever used in this Agreement, including in the Preliminary
Statement, the following words and phrases, unless the context otherwise
requires, shall have the meanings specified in this Article.
"Accrued Certificate Interest": With respect to any Class of REMIC II
Regular Certificates, for any Distribution Date, one month's interest
(calculated on the basis of a 360-day year consisting of twelve 30-day months)
at the Pass-Through Rate applicable to such Class of Certificates for such
Distribution Date, accrued on the related Class Principal Balance or Class
Notional Amount, as the case may be, of such Class of Certificates outstanding
immediately prior to such Distribution Date. The Accrued Certificate Interest in
respect of any Class of REMIC II Regular Certificates for any Distribution Date
shall be deemed to have accrued during the applicable Interest Accrual Period.
"Additional Trust Fund Expense": Any expense incurred or shortfall
experienced with respect to the Trust Fund and not otherwise included in the
calculation of a Realized Loss, that would result in the Regular
Certificateholders' receiving less than the full amount of principal and/or
interest to which they are entitled on any Distribution Date.
"Adjusted Net Mortgage Rate": With respect to any Mortgage Loan or REO
Loan, for any Distribution Date, the annualized rate at which interest would
have to accrue thereon on the basis of a 360-day year consisting of twelve
30-day months (a "30/360 basis") during the most recently ended calendar month
in order to produce the actual amount of interest accrued (or, if such Mortgage
Loan or REO Loan, as the case may be, is prepaid, in whole or in part, or
otherwise liquidated during such calendar month, that otherwise would have
accrued) in respect of such Mortgage Loan or REO Loan, as the case may be, at
the related Net Mortgage Rate in effect for such Mortgage Loan during such
calendar month.
"Administrative Fee Rate": With respect to each Mortgage Loan and REO
Loan, as specified in the Mortgage Loan Schedule, the sum of the related Master
Servicing Fee Rate and the Trustee Fee Rate.
"Advance": Any P&I Advance or Servicing Advance.
"Advance Interest": Interest accrued on any Advance at the
Reimbursement Rate and payable to the Master Servicer, the Special Servicer or
the Trustee, as the case may be, all in accordance with Section 3.11(f) or
Section 4.03(d), as applicable.
"Adverse REMIC Event": With respect to each of REMIC I and REMIC II,
either (i) the endangerment of the status of such REMIC as a REMIC or (ii),
except as permitted by Section 3.17(a), the imposition of a tax upon such REMIC
or any of its assets or transactions (including, without limitation, the tax on
prohibited transactions as defined in Section 860F(a)(2) of the Code and the tax
on certain contributions set forth in Section 860G(d) of the Code).
"Affiliate": With respect to any specified Person, any other Person
controlling or controlled by or under common control with such specified Person.
For the purposes of this definition, "control" when used with respect to any
specified Person means the power to direct the management and policies of such
Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise and the terms "controlling" and
"controlled" have the meanings correlative to the foregoing.
"Agreement": This Amended and Restated Pooling and Servicing Agreement,
together with all amendments hereof and supplements hereto.
"Annuity Factor": As defined in Section 4.01(d).
"Applicable State Law": For purposes of Article X, the Applicable State
Law shall be (a) the laws of the State of New York, (b) the laws of the states
in which the Corporate Trust Office of the Trustee and the Primary Servicing
Offices of the Master Servicer and the Special Servicer are located, (c) the
laws of the states in which any Mortgage Loan documents are held and/or any REO
Properties are located, (d) such other state and local law whose applicability
shall have been brought to the attention of the REMIC Administrator by either
(i) an Opinion of Counsel delivered to it or (ii) written notice from the
appropriate taxing authority as to the applicability of such state law, and (e)
such other state or local law as to which the REMIC Administrator has actual
knowledge of applicability.
"Appraisal": With respect to any Mortgaged Property or REO Property as
to which an appraisal is required to be performed pursuant to the terms of this
Agreement, a narrative appraisal complying with USPAP (or, in the case of
Mortgage Loans and REO Loans with a Stated Principal Balance as of the date of
such appraisal of $2,000,000 or less, a limited appraisal and a summary report)
that indicates the "market value" of the subject property, as defined in 12
C.F.R. ss.225.62(g), and is conducted by a Qualified Appraiser (or by the
Special Servicer, in the case of a limited appraisal and summary report with
respect to a Mortgage Loan or an REO Loan with a Stated Principal Balance as of
the date of such appraisal of $2,000,000 or less).
"Appraisal Reduction Amount": With respect to any Required Appraisal
Loan, an amount (calculated as of the Determination Date immediately following
the later of (a) the date on which the most recent Appraisal that meets the
requirements of Section 3.19(b) in respect of such Required Appraisal Loan, was
obtained by the Master Servicer or the Special Servicer, as the case may be, and
(b) the earliest of the relevant dates in respect of such Required Appraisal
Loan specified in the first sentence of Section 3.19(b) hereof) equal to the
excess, if any, of (x) the sum of (i) the Stated Principal Balance of such
Required Appraisal Loan, (ii) to the extent not previously advanced by or on
behalf of the Master Servicer or the Trustee, all accrued and unpaid interest on
such Required Appraisal Loan through the most recent Due Date prior to such
Determination Date at a per annum rate equal to the sum of the related Net
Mortgage Rate and the Trustee Fee Rate, (iii) all accrued but unpaid Master
Servicing Fees and Special Servicing Fees in respect of such Required Appraisal
Loan, (iv) all related unreimbursed Advances made by or on behalf of the Master
Servicer, the Special Servicer or the Trustee in respect of such Required
Appraisal Loan, together with all unpaid Advance Interest accrued on such
Advances, and (v) all currently due but unpaid real estate taxes and
assessments, insurance premiums and, if applicable, ground rents in respect of
the related Mortgaged Property or REO Property (net of any Escrow Payments or
other reserves held by the Master Servicer or the Special Servicer with respect
to any such item), over (y) 90% of an amount equal to (i) the Appraised Value of
the related Mortgaged Property or REO Property, as applicable, as determined by
the most recent relevant Appraisal acceptable for purposes of Section 3.19(b)
hereof, net of (ii) the amount of any liens on such property (other than in
respect of items described in clause (x)(v) above) that are prior to the lien of
the Required Appraisal Loan. Notwithstanding the foregoing, if an Appraisal is
required to be obtained pursuant to Section 3.19(b) but has not been received
within the 90-day period contemplated by such section, then until the date such
Appraisal is obtained the "Appraisal Reduction Amount" for the subject Required
Appraisal Loan will be deemed to equal 30% of the Stated Principal Balance of
such Required Appraisal Loan; provided that upon receipt of an Appraisal
acceptable for purposes of Section 3.19(b) hereof, the Appraisal Reduction
Amount for such Required Appraisal Loan will be recalculated in accordance with
the preceding sentence.
"Appraised Value": As of any date of determination, the appraised value
of a Mortgaged Property based upon the most recent Appraisal obtained pursuant
to this Agreement.
"Asset Status Report": As defined in Section 3.21(d).
"Assignment of Leases": With respect to any Mortgaged Property, any
assignment of leases, rents and profits or similar document or instrument
executed by the Mortgagor, assigning to the mortgagee all of the income, rents
and profits derived from the ownership, operation, leasing or disposition of all
or a portion of such Mortgaged Property, in the form which was duly executed,
acknowledged and delivered, as amended, modified, renewed or extended through
the date hereof and from time to time hereafter.
"Assumed Final Distribution Date": As defined in Section 4.01(d).
"Assumed Monthly Payment": With respect to any Balloon Mortgage Loan
for its Stated Maturity Date (provided that such Mortgage Loan has not been paid
in full, and no other Liquidation Event has occurred in respect thereof, on or
before the end of the Collection Period in which such Stated Maturity Date
occurs) and for any subsequent Due Date therefor as of which such Mortgage Loan
remains outstanding and part of the Trust Fund, if no Monthly Payment (other
than a delinquent Balloon Payment) is due for such Due Date, the scheduled
monthly payment of principal and/or interest deemed to be due in respect thereof
on such Due Date equal to the amount that would have been due in respect of such
Mortgage Loan on such Due Date if it had been required to continue to accrue
interest in accordance with its terms, and to pay principal in accordance with
the amortization schedule (if any), in effect immediately prior to, and without
regard to the occurrence of, its most recent scheduled maturity date (as such
terms and amortization schedule may have been modified, and such maturity date
may have been extended, in connection with a bankruptcy or similar proceeding
involving the related Mortgagor or a modification, waiver or amendment of such
Mortgage Loan granted or agreed to by the Master Servicer or Special Servicer
pursuant to Section 3.20). With respect to any REO Loan, for any Due Date
therefor as of which the related REO Property remains part of the Trust Fund,
the scheduled monthly payment of principal and/or interest deemed to be due in
respect thereof on such Due Date equal to the Monthly Payment that was due (or,
in the case of a Balloon Mortgage Loan described in the preceding sentence of
this definition, the Assumed Monthly Payment that was deemed due) in respect of
the related Mortgage Loan on the last Due Date prior to its becoming an REO
Loan.
"Available Distribution Amount": With respect to any Distribution Date,
an amount equal to (a) the balance on deposit in the Distribution Account as of
11:30 a.m. (New York City time) on such Distribution Date (or such later time on
such date as of which distributions are made on the Certificates), including,
without limitation, if and to the extent on deposit therein as of such time, the
Master Servicer Remittance Amount for the related Master Servicer Remittance
Date, any P&I Advances made by the Master Servicer or the Trustee to cover
uncollected Monthly Payments due and/or Assumed Monthly Payments deemed due
during the related Collection Period, and any payments made by the Master
Servicer to cover Prepayment Interest Shortfalls incurred during the related
Collection Period, net of (b) any portion of the amounts described in clause (a)
of this definition that represents one or more of the following: (i) collected
Monthly Payments that are due on a Due Date following the end of the related
Collection Period, (ii) any payments of principal (including, without
limitation, Principal Prepayments) and interest, Liquidation Proceeds and
Insurance Proceeds received after the end of the related Collection Period,
(iii) Prepayment Premiums, (iv) any amounts payable or reimbursable to any
Person from the Distribution Account pursuant to any of clauses (ii) through
(vi) of Section 3.05(b), and (v) any amounts deposited in the Distribution
Account in error; provided that the Available Distribution Amount for the Final
Distribution Date shall be calculated without regard to clauses (b)(i) and
(b)(ii) of this definition.
"Balloon Mortgage Loan": Any Mortgage Loan that by its original terms
or by virtue of any modification entered into as of the Closing Date provides
for an amortization schedule extending beyond its Stated Maturity Date and as to
which, in accordance with such terms, the Monthly Payment due on its Stated
Maturity Date is at least two times larger than the Monthly Payment due on the
Due Date next preceding its Stated Maturity Date.
"Balloon Payment": With respect to any Balloon Mortgage Loan as of any
date of determination, the Monthly Payment payable on the Stated Maturity Date
of such Mortgage Loan.
"Bank": As defined in Section 2.08.
"Bankruptcy Code": The federal Bankruptcy Code, as amended from time to
time (Title 11 of the United States Code).
"Base Prospectus": That certain prospectus dated March 9, 1998,
relating to trust funds established by the Depositor and publicly offered
mortgage pass-through certificates evidencing interests therein.
"Book-Entry Certificate": Any Certificate registered in the name of the
Depository or its nominee.
"Business Day": Any day other than a Saturday, a Sunday or a day on
which banking institutions in New York, New York, Minneapolis, Minnesota and the
cities in which the Primary Servicing Offices of the Master Servicer and Special
Servicer and the Corporate Trust Office of the Trustee are located, are
authorized or obligated by law or executive order to remain closed.
"CERCLA": The Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended.
"Certificate": Any one of the Depositor's Commercial Mortgage
Pass-Through Certificates, Series 1998-1 as executed by the Trustee and
authenticated and delivered hereunder by the Certificate Registrar.
"Certificate Account": The segregated account or accounts created and
maintained by the Master Servicer pursuant to Section 3.04(a) on behalf of the
Trustee in trust for Certificateholders, which shall be entitled "Midland Loan
Services, L.P., as Master Servicer, in trust for the registered holders of
NationsLink Funding Corporation, Commercial Mortgage Pass-Through Certificates,
Series 1998-1, Certificate Account".
"Certificate Factor": With respect to any Class of REMIC II Regular
Certificates, as of any date of determination, a fraction, expressed as a
decimal carried to eight places, the numerator of which is the then related
Class Principal Balance or Class Notional Amount, as the case may be, and the
denominator of which is the related Initial Class Principal Balance or Initial
Class Notional Amount, as the case may be.
"Certificate Notional Amount": With respect to any Class X-1
Certificate, the hypothetical or notional principal amount on which such
Certificate accrues interest, which, as of any date of determination, is equal
to the product of (a) the Percentage Interest evidenced by such Certificate,
multiplied by (b) the then Class X-1 Notional Amount. With respect to any Class
X-2 Certificate, the hypothetical or notional amount principal amount on which
such Certificate accrues interest, which, as of any date of determination, is
equal to the product of (a) the Percentage Interest evidenced by such
Certificate, multiplied by (b) the then Class X-2 Notional Amount.
"Certificate Owner": With respect to a Book-Entry Certificate, the
Person who is the beneficial owner of such Certificate as reflected on the books
of the Depository or on the books of a Depository Participant or on the books of
an indirect participating brokerage firm for which a Depository Participant acts
as agent.
"Certificate Principal Balance": With respect to any Sequential Pay
Certificate, as of any date of determination, the then outstanding principal
amount of such Certificate equal to the product of (a) the Percentage Interest
evidenced by such Certificate, multiplied by (b) the then Class Principal
Balance of the Class of Certificates to which such Certificate belongs.
"Certificate Register" and "Certificate Registrar": The register
maintained and the registrar appointed pursuant to Section 5.02.
"Certificateholder" or "Holder": The Person in whose name a Certificate
is registered in the Certificate Register; provided that solely for the purposes
of giving any consent, approval or waiver pursuant to this Agreement, any
Certificate registered in the name of the Depositor, the Mortgage Loan Seller,
the Master Servicer, the Special Servicer, the REMIC Administrator or the
Trustee or any Affiliate of any of them shall be deemed not to be outstanding,
and the Voting Rights to which any of them is entitled shall not be taken into
account in determining whether the requisite percentage of Voting Rights
necessary to effect any such consent, approval or waiver has been obtained,
except as otherwise provided in Sections 7.04 and 11.01 or except in connection
with the Controlling Class exercising its rights under Section 3.23, or unless
such Persons collectively own an entire Class of Certificates and only the
Holders of such Class of Certificates are entitled to grant such consent,
approval or waiver. The Certificate Registrar shall be entitled to request and
rely upon a certificate of the Depositor, the Mortgage Loan Seller, the Master
Servicer, the Special Servicer or, if other than the Trustee, the REMIC
Administrator, as the case may be, in determining whether a Certificate is
registered in the name of an Affiliate of such Person. All references herein to
"Holders" or "Certificateholders" shall reflect the rights of Certificate Owners
as they may indirectly exercise such rights through the Depository and the
Depository Participants, except as otherwise specified herein; provided,
however, that the parties hereto shall be required to recognize as a "Holder" or
"Certificateholder" only the Person in whose name a Certificate is registered in
the Certificate Register.
"Certificateholder Reports": As defined in Section 4.02(a).
"Class": Collectively, all of the Certificates or REMIC I Regular
Interests bearing the same alphabetical and, if applicable, numerical Class
designation.
"Class A Certificate": Any one of the Class A-1 or Class A-2
Certificates.
"Class A-1 Certificate": Any one of the Certificates with a "Class A-1"
designation on the face thereof, substantially in the form of Exhibit A-2
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class A-2 Certificate": Any one of the Certificates with a "Class A-2"
designation on the face thereof, substantially in the form of Exhibit A-2
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class A-3 Certificate": Any one of the Certificates with a "Class A-3"
designation on the face thereof, substantially in the form of Exhibit A-2
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class B Certificate": Any one of the Certificates with a "Class B"
designation on the face thereof, substantially in the form of Exhibit A-3
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class C Certificate": Any one of the Certificates with a "Class C"
designation on the face thereof, substantially in the form of Exhibit A-3
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class D Certificate": Any one of the Certificates with a "Class D"
designation on the face thereof, substantially in the form of Exhibit A-3
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class E Certificate": Any one of the Certificates with a "Class E"
designation on the face thereof, substantially in the form of Exhibit A-3
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class F Certificate": Any one of the Certificates with a "Class F"
designation on the face thereof, substantially in the form of Exhibit A-4
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class G Certificate": Any one of the Certificates with a "Class G"
designation on the face thereof, substantially in the form of Exhibit A-4
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class H Certificate": Any one of the Certificates with a "Class H"
designation on the face thereof, substantially in the form of Exhibit A-4
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class J Certificate": Any one of the Certificates with a "Class J"
designation on the face thereof, substantially in the form of Exhibit A-4
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class K Certificate": Any one of the Certificates with a "Class K"
designation on the face thereof, substantially in the form of Exhibit A-4
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class LA-1 Uncertificated Interest": A regular interest in REMIC I
which is held as an asset of REMIC II and having the initial Uncertificated
Principal Balance and per annum rate of interest set forth in Section
4.01(c)(i).
"Class LA-2 Uncertificated Interest": A regular interest in REMIC I
which is held as an asset of REMIC II and having the initial Uncertificated
Principal Balance and per annum rate of interest set forth in Section
4.01(c)(i).
"Class LA-3 Uncertificated Interest": A regular interest in REMIC I
which is held as an asset of REMIC II and having the initial Uncertificated
Principal Balance and per annum rate of interest set forth in Section
4.01(c)(i).
"Class LB Uncertificated Interest": A regular interest in REMIC I which
is held as an asset of REMIC II and having the initial Uncertificated Principal
Balance and per annum rate of interest set forth in Section 4.01(c)(i).
"Class LC Uncertificated Interest": A regular interest in REMIC I which
is held as an asset of REMIC II and having the initial Uncertificated Principal
Balance and per annum rate of interest set forth in Section 4.01(c)(i).
"Class LD Uncertificated Interest": A regular interest in REMIC I which
is held as an asset of REMIC II and having the initial Uncertificated Principal
Balance and per annum rate of interest set forth in Section 4.01(c)(i).
"Class LE Uncertificated Interest": A regular interest in REMIC I which
is held as an asset of REMIC II and having the initial Uncertificated Principal
Balance and per annum rate of interest set forth in Section 4.01(c)(i).
"Class LF Uncertificated Interest": A regular interest in REMIC I which
is held as an asset of REMIC II and having the initial Uncertificated Principal
Balance and per annum rate of interest set forth in Section 4.01(c)(i).
"Class LG Uncertificated Interest": A regular interest in REMIC I which
is held as an asset of REMIC II and having the initial Uncertificated Principal
Balance and per annum rate of interest set forth in Section 4.01(c)(i).
"Class LWAC-1 Uncertificated Interest": A regular interest in REMIC I
which is held as an asset of REMIC II and having the initial Notional Amount and
per annum rate of interest set forth in Section 4.01(c)(i).
"Class LWAC-2 Uncertificated Interest": A regular interest in REMIC I
which is held as an asset of REMIC II and having the initial Notional Amount and
per annum rate of interest set forth in Section 4.01(c)(i).
"Class Notional Amount": The Class X-1 Notional Amount or the Class X-2
Notional Amount, as the case may be.
"Class Principal Balance": The aggregate principal amount of any Class
of Sequential Pay Certificates outstanding as of any date of determination. As
of the Closing Date, the Class Principal Balance of each such Class of
Certificates shall equal the Initial Class Principal Balance thereof. On each
Distribution Date, the Class Principal Balance of each Class of the Sequential
Pay Certificates shall be permanently reduced by the amount of any distributions
of principal made thereon on such Distribution Date pursuant to Section 4.01(b)
and, if and to the extent appropriate, shall be further permanently reduced on
such Distribution Date as provided in Section 4.04.
"Class R-I Certificate": Any one of the Certificates with a "Class R-I"
designation on the face thereof, substantially in the form of Exhibit A-5
attached hereto, and evidencing the sole Class of "residual interest" in REMIC I
for purposes of the REMIC Provisions.
"Class R-II Certificate": Any one of the Certificates with a "Class
R-II" designation on the face thereof, substantially in the form of Exhibit A-5
attached hereto, and evidencing the sole Class of "residual interest" in REMIC
II for purposes of the REMIC Provisions.
"Class X Certificate": Any one of the Class X-1 or Class X-2
Certificates.
"Class X-1 Certificate": Any one of the Certificates with a "Class X-1"
designation on the face thereof, substantially in the form of Exhibit A-1, and
evidencing a "regular interest" in REMIC II for purposes of the REMIC
Provisions.
"Class X-1 Notional Amount": The aggregate hypothetical or notional
principal amount on which the Class X-1 Certificates collectively accrue
interest, which amount is equal to the Uncertificated Principal Balance of the
Class LWAC-1 Uncertificated Interest, which corresponds to 99.99% of the
aggregate Class Principal Balance of the Class A Certificates.
"Class X-1 Pass-Through Rate": With respect to any Distribution Date, a
rate per annum, rounded to eight decimal places, equal to the excess, if any, of
(a) the Weighted Average Adjusted Net Mortgage Rate over (b) the weighted
average of the Pass-Through Rates on the Class A Certificates, weighted on the
basis of their respective Class Principal Balances immediately prior to such
Distribution Date. Interest at the Class X-1 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-1
Uncertificated Interest.
"Class X-2 Certificate": Any one of the Certificates with a "Class X-2"
designation on the face thereof, substantially in the form of Exhibit A-1, and
evidencing a "regular interest" in REMIC II for purposes of the REMIC
Provisions.
"Class X-2 Notional Amount": The aggregate hypothetical or notional
principal amount on which the Class X-2 Certificates collectively accrue
interest, which amount is equal to the Uncertificated Principal Balance of the
Class LWAC-2 Uncertificated Interest, which corresponds to 99.99% of the
aggregate Class Principal Balance of the Classes of Sequential Pay Certificates
other than the Class A Certificates.
"Class X-2 Pass-Through Rate": With respect to any Distribution Date, a
rate per annum, rounded to eight decimal places, equal to the excess, if any, of
(a) the Weighted Average Adjusted Net Mortgage Rate over (b) the weighted
average of the Pass-Through Rates on the Sequential Pay Certificates, other than
the Class A Certificates, weighted on the basis of their respective Class
Principal Balances immediately prior to such Distribution Date. Interest at the
Class X-2 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-2 Uncertificated Interest.
"Closing Date": March 25, 1998.
"Code": The Internal Revenue Code of 1986, as amended.
"Collection Period": With respect to any Distribution Date, the period
commencing immediately following the Determination Date in the calendar month
preceding the month in which such Distribution Date occurs (or, in the case of
the initial Distribution Date, commencing immediately following the Cut-off
Date) and ending on and including the Determination Date in the calendar month
in which such Distribution Date occurs.
"Commission": The Securities and Exchange Commission.
"Confidential Information": As defined in Section 3.24.
"Controlling Class": As of any date of determination, the outstanding
Class of Sequential Pay Certificates with the lowest Payment Priority (the Class
A Certificates being treated as a single Class for this purpose) that has a then
outstanding Class Principal Balance at least equal to the greater of (a) 1% of
the outstanding aggregate Class Principal Balance as of the Closing Date or (b)
25% of the Initial Class Principal Balance thereof (or, if no Class of
Sequential Pay Certificates has a Class Principal Balance at least equal to 1%
of the outstanding aggregate Class Principal Balance as of the Closing Date or
25% of the Initial Class Principal Balance thereof, then the "Controlling Class"
shall be the outstanding Class of Sequential Pay Certificates with the then
largest outstanding Class Principal Balance).
"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 11000 Broken Land Parkway, Columbia,
Maryland 21044-3562.
"Corrected Mortgage Loan": Any Mortgage Loan that had been a Specially
Serviced Mortgage Loan but has ceased to be such in accordance with the
definition of "Specially Serviced Mortgage Loan" (other than by reason of a
Liquidation Event occurring in respect of such Mortgage Loan or a related
Mortgaged Property becoming an REO Property).
"Corresponding Certificate" and "Corresponding REMIC I Regular
Interest": For any Class of REMIC I Regular Interests, the related Class of
REMIC II Regular Certificates set forth below and for any Class of REMIC II
Regular Certificates, the related Class of REMIC I Regular Interests set forth
below:
Corresponding REMIC I
Corresponding Certificate Regular 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 J Certificate Class LJ Uncertificated Interest
Class K Certificate Class LK Uncertificated Interest
"CPR": As defined in the Base Prospectus.
"CSSA": The Commercial Real Estate Secondary Market and Securitization
Association.
"Cross-Collateralized Mortgage Loan": Any Mortgage Loan that is
cross-collateralized and cross-defaulted with one or more other Mortgage Loans.
"Current Principal Distribution Amount": With respect to any
Distribution Date, an amount (calculated in accordance with Section 1.02) equal
to the aggregate of, without duplication:
(a) the principal portions of all Monthly Payments (other than
Balloon Payments) and any Assumed Monthly Payments due or deemed due,
as the case may be, in respect of the Mortgage Loans and any REO Loans
for their respective Due Dates occurring during the related Collection
Period;
(b) all Principal Prepayments received on the Mortgage Loans
during the related Collection Period;
(c) with respect to any Balloon Mortgage Loan as to which the
related Stated Maturity Date occurred during or prior to the related
Collection Period, any payment of principal (exclusive of any Principal
Prepayment and any amount described in subclause (d) below) that was
made by or on behalf of the related Mortgagor during the related
Collection Period, net of any portion of such payment that represents a
recovery of the principal portion of any Monthly Payment (other than a
Balloon Payment) due, or the principal portion of any Assumed Monthly
Payment deemed due, in respect of such Balloon Mortgage Loan on a Due
Date during or prior to the related Collection Period and not
previously recovered;
(d) all Liquidation Proceeds (net of Liquidation Expenses) and
Insurance Proceeds received on or in respect of the Mortgage Loans
during the related Collection Period that were identified and applied
by the Master Servicer as recoveries of principal thereof, in each case
net of any portion of such amounts that represents a recovery of the
principal portion of any Monthly Payment (other than a Balloon Payment)
due, or of the principal portion of any Assumed Monthly Payment deemed
due, in respect of any such Mortgage Loan on a Due Date during or prior
to the related Collection Period and not previously recovered; and
(e) all Liquidation Proceeds (net of Liquidation Expenses),
Insurance Proceeds and REO Revenues received on or in respect of any
REO Properties during the related Collection Period that were
identified and applied by the Master Servicer as recoveries of
principal of the related REO Loans, in each case net of any portion of
such amounts that represents a recovery of the principal portion of any
Monthly Payment (other than a Balloon Payment) due, or of the principal
portion of any Assumed Monthly Payment deemed due, in respect of any
such REO Loan or the predecessor Mortgage Loan on a Due Date during or
prior to the related Collection Period and not previously recovered.
"Custodian": A Person who is at any time appointed by the Trustee
pursuant to Section 8.11 as a document custodian for the Mortgage Files, which
Person shall not be the Depositor, the Mortgage Loan Seller or an Affiliate of
either.
"Cut-off Date": March 1, 1998.
"Cut-off Date Balance": With respect to any Mortgage Loan, the
outstanding principal balance of such Mortgage Loan as of the Cut-off Date, net
of all unpaid payments of principal due in respect thereof on or before such
date.
"DCR": Duff & Phelps Credit Rating Co. or its successor in interest. If
neither such rating agency nor any successor remains in existence, "DCR" shall
be deemed to refer to such other nationally recognized statistical rating agency
or other comparable Person designated by the Depositor, notice of which
designation shall be given to the Trustee, the Master Servicer, the Special
Servicer and the REMIC Administrator, and specific ratings of Duff & Phelps
Credit Rating Co. herein referenced shall be deemed to refer to the equivalent
ratings of the party so designated.
"Debt Service Coverage Ratio": With respect to any Mortgage Loan, as of
any date of determination, and calculated without regard to any
cross-collateralization feature of such Mortgage Loan, the ratio of (x) the Net
Operating Income (before payment of any debt service on such Mortgage Loan)
generated by the related Mortgaged Property during the most recently ended
period of not more than twelve months or less than three months for which
financial statements (whether or not audited) have been received by or on behalf
of the Mortgage Loan Seller (prior to the Closing Date) or the Master Servicer
or Special Servicer (following the Closing Date) (such Net Operating Income to
be annualized if the relevant period is less than twelve months), to (y) the
product of the amount of the Monthly Payment in effect for such Mortgage Loan as
of such date of determination, multiplied by 12.
"Default Charges": Any and all Default Interest and late payment
charges paid or payable, as the context requires, in connection with a default
under a Mortgage Loan or any successor REO Loan.
"Default Interest": With respect to any Mortgage Loan (or related REO
Loan), any amounts collected thereon, other than late payment charges and
Prepayment Premiums, that represent interest in excess of interest accrued on
the principal balance of such Mortgage Loan (or REO Loan) at the related
Mortgage Rate, such excess interest arising out of a default under such Mortgage
Loan.
"Defaulted Mortgage Loan": Any Specially Serviced Mortgage Loan as to
which a material default has occurred or a default in respect of any payment
thereon is reasonably foreseeable, and which the Special Servicer has
determined, in its reasonable and good faith judgment, will become the subject
of a foreclosure sale or similar proceedings (the basis for which determination
shall be set forth in an Officer's Certificate to be delivered to the Master
Servicer and the Trustee).
"Definitive Certificate": As defined in Section 5.03(a).
"Delinquent Loan Status Report": A report or reports setting forth,
among other things, those Mortgage Loans which, as of the close of business on
the last day of the most recently ended calendar month were (i) delinquent 30-59
days, (ii) delinquent 60-89 days, (iii) delinquent 90 days or more, (iv) current
but specially serviced, (v) in foreclosure but as to which the related Mortgaged
Property had not become REO Property, or (vi) related to a Mortgaged Property
which had become REO Property.
"Delivery Date": On or about March 25, 1998.
"Denomination": As defined in Section 5.02(a).
"Depositor": NationsLink Funding Corporation, or its successor in
interest.
"Depository": The Depository Trust Company, or any successor Depository
hereafter named. The nominee of the initial Depository for purposes of
registering those Certificates that are to be Book-Entry Certificates, is Cede &
Co. The Depository shall at all times be a "clearing corporation" as defined in
Section 8-102(3) of the Uniform Commercial Code of the State of New York and a
"clearing agency" registered pursuant to the provisions of Section 17A of the
Exchange Act.
"Depository Participant": A broker, dealer, bank or other financial
institution or other Person for whom from time to time the Depository effects
book-entry transfers and pledges of securities deposited with the Depository.
"Depository Rules": As defined in Section 5.02(b).
"Determination Date": With respect to any Distribution Date, the 10th
day of the month in which such Distribution Date occurs, or if such 10th day is
not a Business Day, the Business Day immediately preceding.
"Directing Certificateholder": The Controlling Class Certificateholder
(or its designee) selected by the Majority Certificateholder of the Controlling
Class, 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, by Certificate Principal 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 (other than the sale of an REO Property pursuant to Section 3.18(d)),
the performance of any construction work thereon or any use of such REO Property
in a trade or business conducted by REMIC I other than through an Independent
Contractor; provided, however, that the Special Servicer (or any Sub-Servicer on
behalf of the Special Servicer) shall not be considered to Directly Operate an
REO Property solely because the Special Servicer (or any Sub-Servicer on behalf
of the Special Servicer) establishes rental terms, chooses tenants, enters into
or renews leases, deals with taxes and insurance, or makes decisions as to, or
funds, repairs or capital expenditures with respect to such REO Property
(including, without limitation, construction activity to effect repairs or in
conjunction with leasing activity).
"Disqualified Organization": Any of the following: (i) the United
States or a possession thereof, any State or any political subdivision thereof,
or any agency or instrumentality of any of the foregoing (other than an
instrumentality which is a corporation if all of its activities are subject to
tax and, except for Freddie Mac, a majority of its board of directors is not
selected by any such governmental unit), (ii) a foreign government,
international organization, or any agency or instrumentality of either of the
foregoing, (iii) any organization (except certain farmers' cooperatives
described in Section 521 of the Code) which is exempt from the tax imposed by
Chapter 1 of the Code (unless such organization is subject to the tax imposed by
Section 511 of the Code on unrelated business taxable income), (iv) rural
electric and telephone cooperatives described in Section 1381 of the Code or (v)
any other Person so designated by the REMIC Administrator based upon an Opinion
of Counsel that the holding of an Ownership Interest in a Residual Certificate
by such Person may cause the Trust or any Person having an Ownership Interest in
any Class of Certificates, other than such Person, to incur a liability for any
federal tax imposed under the Code that would not otherwise be imposed but for
the Transfer of an Ownership Interest in a Residual Certificate to such Person.
The terms "United States", "State" and "international organization" shall have
the meanings set forth in Section 7701 of the Code or successor provisions.
"Distributable Certificate Interest": With respect to any Class of
REMIC II Regular Certificates, for any Distribution Date, the Accrued
Certificate Interest in respect of such Class of Certificates for such
Distribution Date, reduced (to not less than zero) by that portion, if any, of
the Net Aggregate Prepayment Interest Shortfall for such Distribution Date
allocated to such Class of Certificates as set forth below. The Net Aggregate
Prepayment Interest Shortfall, if any, for each Distribution Date shall be
allocated to the respective Classes of REMIC II Regular Certificates on such
Distribution Date pro rata among the Classes of REMIC II Regular Certificates,
in each case up to an amount equal to the lesser of any remaining unallocated
portion of such Net Aggregate Prepayment Interest Shortfall and any Accrued
Certificate Interest in respect of the particular Class of Certificates for such
Distribution Date.
"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 "Norwest Bank Minnesota, National
Association, as Trustee, in trust for the registered holders of NationsLink
Funding Corporation, Commercial Mortgage Pass-Through Certificates, Series
1998-1, 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 in April
1998.
"Distribution Date Statement": As defined in Section 4.02(a).
"Document Defect": As defined in Section 2.02(e).
"Due Date": With respect to (i) any Mortgage Loan on or prior to its
Stated Maturity Date, the day of the month set forth in the related Mortgage
Note on which each Monthly Payment on such Mortgage Loan is scheduled to be
first due; (ii) any Mortgage Loan after its Stated Maturity Date, the day of the
month set forth in the related Mortgage Note on which each Monthly Payment on
such Mortgage Loan had been scheduled to be first due; and (iii) any REO Loan,
the day of the month set forth in the related Mortgage Note on which each
Monthly Payment on the related Mortgage Loan had been scheduled to be first due.
"Eligible Account": Any of (i) an account maintained with a federal or
state chartered depository institution or trust company, including, without
limitation, the Trustee (if it meets the following rating criteria), the
long-term unsecured debt obligations of which are rated no less than "Aa3" by
Moody's, "AA" by DCR and "AA" by Fitch (if the deposits are to be held in the
account for more than 30 days), or the short-term unsecured debt obligations of
which are rated no less than "P-1" by Moody's, "D-1+" by DCR and "F-1+" by Fitch
(if the deposits are to be held in the account for 30 days or less), in each
case, at any time funds are on deposit therein, (ii) a segregated trust account
or accounts maintained with the corporate trust department of a federally
chartered depository institution or trust company, including, without
limitation, the Trustee, acting in its fiduciary capacity, (iii) a segregated
trust account or accounts maintained with the corporate trust department of a
state chartered depository institution or trust company, including, without
limitation, the Trustee, acting in its fiduciary capacity and subject to
regulations regarding fiduciary funds on deposit therein substantially similar
to 12 C.F.R. ss.9.10(b), or (iv) any other account which would not result in the
downgrade, qualification or withdrawal of the rating then assigned by either
Rating Agency to any Class of Certificates (as confirmed in writing by each
Rating Agency).
"Emergency Advance": Any Servicing Advance, whether or not it is a
Servicing Advance that, pursuant hereto, the Special Servicer is required to
request the Master Servicer to make, that must be made within 10 days of the
Special Servicer's becoming aware that it must be made in order to avoid any
material penalty, any material harm to a Mortgaged Property or any other
material adverse consequence to the Trust Fund.
"ERISA": The Employee Retirement Income Security Act of 1974, as
amended.
"Escrow Payment": Any payment received by the Master Servicer or the
Special Servicer for the account of any Mortgagor for application toward the
payment of real estate taxes, assessments, insurance premiums and similar items
in respect of the related Mortgaged Property.
"Event of Default": One or more of the events described in Section
7.01(a).
"Exchange Act": The Securities Exchange Act of 1934, as amended.
"Exemption-Favored Party": Any of (i) NationsBank Corporation
("NationsBank"), (ii) any Person directly or indirectly, through one or more
intermediaries, controlling, controlled by or under common control with
NationsBank and (iii) any member of a syndicate or selling group of which
NationsBank or a person described in clause (ii) is a manager or co-manager with
respect to a Class of Certificates.
"Fannie Mae": The Federal National Mortgage Association or any
successor.
"FDIC": The Federal Deposit Insurance Corporation or any successor.
"Final Distribution Date": The final Distribution Date on which any
distributions are to be made on the Certificates as contemplated by Section
9.01.
"Final Recovery Determination": A determination by the Special Servicer
with respect to any defaulted Mortgage Loan or REO Property and, accordingly,
the related REO Loan (other than a Mortgage Loan or REO Property, as the case
may be, purchased by the Mortgage Loan Seller or an Affiliate thereof pursuant
to Section 2.03, by the Majority Certificateholder of the Controlling Class
pursuant to Section 3.18(b), by the Master Servicer or the Special Servicer
pursuant to Section 3.18(c) or by the Master Servicer or the Majority
Certificateholder of the Controlling Class pursuant to Section 9.01) that there
has been a recovery of all Insurance Proceeds, Liquidation Proceeds and other
payments or recoveries (including, without limitation, by reason of a sale of
such Mortgage Loan or REO Property pursuant to Section 3.18(d) hereof) that the
Special Servicer has determined, in accordance with the Servicing Standard,
exercised without regard to any obligation of the Master Servicer or Special
Servicer to make payments from its own funds pursuant to Section 3.07(b), will
be ultimately recoverable.
"Fitch": Fitch IBCA, Inc. or its successor in interest. If neither
such rating agency nor any successor remains in existence, "Fitch" shall be
deemed to refer to such other nationally recognized statistical rating agency or
other comparable Person designated by the Depositor, notice of which designation
shall be given to the Trustee, the Master Servicer, the Special Servicer and the
REMIC Administrator, and specific ratings of Fitch IBCA, Inc. herein referenced
shall be deemed to refer to the equivalent ratings of the party so designated.
"Freddie Mac": The Federal Home Loan Mortgage Corporation or any
successor.
"Ground Lease": The ground lease pursuant to which any Mortgagor holds
a leasehold interest in the related Mortgaged Property.
"Group": A group of Mortgage Loans that are cross-collateralized and
cross-defaulted with each other.
"Hazardous Materials": Any dangerous, toxic or hazardous pollutants,
chemicals, wastes, or substances, including, without limitation, those so
identified pursuant to CERCLA or any other federal, state or local environmental
related laws and regulations, and specifically including, without limitation,
asbestos and asbestos-containing materials, polychlorinated biphenyls ("PCBs"),
radon gas, petroleum and petroleum products, urea formaldehyde and any
substances classified as being "in inventory", "usable work in process" or
similar classification which would, if classified as unusable, be included in
the foregoing definition.
"Historical Loan Modification Report": A report or reports setting
forth, among other things, those Mortgage Loans which, as of the close of
business on the Determination Date immediately preceding the preparation of such
report or reports, have been modified pursuant to this Agreement (i) during the
Collection Period ending on such Determination Date and (ii) since the Cut-off
Date, showing the original and the revised terms thereof.
"Historical Loss Report": A report or reports setting forth, among
other things, as of the close of business on the Determination Date immediately
preceding the preparation of such report or reports, (i) the amount of
Liquidation Proceeds received, and Liquidation Expenses incurred, both during
the Collection Period ending on such Determination Date and historically, and
(ii) the amount of Realized Losses occurring during such Collection Period and
historically, set forth on a Mortgage Loan-by-Mortgage Loan and REO
Property-by-REO Property basis.
"HUD-Approved Servicer": A servicer that is a mortgagee approved by the
Secretary of Housing and Urban Development pursuant to Sections 207 and 211 of
the National Housing Act.
"Independent": When used with respect to any specified Person, any such
Person who (i) is in fact independent of the Depositor, the Mortgage Loan
Seller, the Master Servicer, the Special Servicer, the Trustee, the REMIC
Administrator and any and all Affiliates thereof, (ii) does not have any direct
financial interest in or any material indirect financial interest in any of the
Depositor, the Mortgage Loan Seller, the Master Servicer, the Special Servicer,
the Trustee, the REMIC Administrator or any Affiliate thereof, and (iii) is not
connected with the Depositor, the Mortgage Loan Seller, the Master Servicer, the
Special Servicer, the Trustee, the REMIC Administrator or any Affiliate thereof
as an officer, employee, promoter, underwriter, trustee, partner, director or
Person performing similar functions; provided, however, that a Person shall not
fail to be Independent of the Depositor, the Mortgage Loan Seller, the Master
Servicer, the Special Servicer, the Trustee, the REMIC Administrator or any
Affiliate thereof merely because such Person is the beneficial owner of 1% or
less of any Class of securities issued by the Depositor, the Mortgage Loan
Seller, the Master Servicer, the Special Servicer, the Trustee, the REMIC
Administrator or any Affiliate thereof, as the case may be.
"Independent Contractor": Any Person that would be an "independent
contractor" with respect to REMIC I within the meaning of Section 856(d)(3) of
the Code if REMIC I were a real estate investment trust (except that the
ownership test set forth in that section shall be considered to be met by (i)
any Person that owns, directly or indirectly, 35 percent or more of any Class of
Certificates, or such other interest in any Class of Certificates as is set
forth in an Opinion of Counsel, which shall not be an expense of the Trustee,
the REMIC Administrator or the Trust, delivered to the Trustee and the REMIC
Administrator), so long as REMIC I does not receive or derive any income from
such Person and provided that the relationship between such Person and REMIC I
is at arm's length, all within the meaning of Treasury Regulations Section
1.856-4(b)(5), or (ii) any other Person upon receipt by the Trustee and the
REMIC Administrator of an Opinion of Counsel, which shall be at no expense to
the Trustee, the REMIC Administrator or the Trust, to the effect that the taking
of any action in respect of any REO Property by such Person, subject to any
conditions therein specified, that is otherwise herein contemplated to be taken
by an Independent Contractor will not cause such REO Property to cease to
qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of
the Code, or cause any income realized in respect of such REO Property to fail
to qualify as Rents from Real Property.
"Initial Class Notional Amount": With respect to the Class X-1
Certificates, the initial Class X-1 Notional Amount thereof as of the Closing
Date equal to $714,348,947. With respect to the Class X-2 Certificates, the
initial Class X-2 Notional Amount thereof as of the Closing Date equal to
$306,149,551.
"Initial Class Principal Balance": With respect to any Class of
Sequential Pay Certificates, the initial Class Principal Balance thereof as of
the Closing Date, in each case as set forth below:
Initial Class
Class Principal Balance
----- -----------------
Class A-1 $199,017,108
Class A-2 $81,648,044
Class A-3 $433,755,237
Class B $53,581,529
Class C $56,133,030
Class D $48,478,526
Class E $25,515,013
Class F $51,030,027
Class G $10,206,005
Class H $25,515,013
Class J $12,247,206
Class K $23,473,819
"Initial Pool Balance": The aggregate Cut-off Date Balance of all the
Mortgage Loans included in the Trust Fund as of the Closing Date.
"Institutional Accredited Investor": As defined in Section 5.02.
"Insurance Policy": With respect to any Mortgage Loan or REO Property,
any hazard insurance policy, flood insurance policy, title policy or other
insurance policy that is maintained from time to time in respect of such
Mortgage Loan (or the related Mortgaged Property) or in respect of such REO
Property, as the case may be.
"Insurance Proceeds": Proceeds paid under any Insurance Policy, to the
extent such proceeds are not applied to the restoration of the related Mortgaged
Property or REO Property or released to the Mortgagor, in either case, in
accordance with the Servicing Standard.
"Interest Accrual Period": With respect to each REMIC I Regular
Interest and each Class of REMIC II Regular Certificates, for any Distribution
Date, the calendar month immediately preceding the month in which such
Distribution Date occurs.
"Interest Only Certificate": Any Class X-1 or X-2 Certificate.
"Interested Person": The Depositor, the Mortgage Loan Seller, the
Master Servicer, any Subservicer, the Special Servicer, any Holder of a
Certificate, or any Affiliate of any such Person.
"Investment Account": As defined in Section 3.06(a).
"Investment Representation Letter": As defined in Section 5.02(b).
"IRS": The Internal Revenue Service or any successor.
"Late Collections": With respect to any Mortgage Loan, all amounts
received thereon during any Collection Period, whether as payments, Insurance
Proceeds, Liquidation Proceeds or otherwise, which represent late collections of
the principal and/or interest portions of a Monthly Payment (other than a
Balloon Payment) or an Assumed Monthly Payment in respect of such Mortgage Loan
due or deemed due, as the case may be, for a Due Date in a previous Collection
Period, or for a Due Date coinciding with or preceding the Cut-off Date, and not
previously received or recovered. With respect to any REO Loan, all amounts
received in connection with the related REO Property during any Collection
Period, whether as Insurance Proceeds, Liquidation Proceeds, REO Revenues or
otherwise, which represent late collections of the principal and/or interest
portions of a Monthly Payment (other than a Balloon Payment) or an Assumed
Monthly Payment in respect of the related Mortgage Loan or of an Assumed Monthly
Payment in respect of such REO Loan due or deemed due, as the case may be, for a
Due Date in a previous Collection Period and not previously received or
recovered. The term "Late Collections" shall specifically exclude any Default
Charges.
"Liquidation Event": With respect to any Mortgage Loan, any of the
following events: (i) such Mortgage Loan is paid in full; (ii) a Final Recovery
Determination is made with respect to such Mortgage Loan; (iii) such Mortgage
Loan is repurchased by the Mortgage Loan Seller or any Affiliate thereof
pursuant to Section 2.03; or (iv) such Mortgage Loan is purchased by the
Majority Certificateholder of the Controlling Class pursuant to Section 3.18(b),
by the Master Servicer or the Special Servicer pursuant to Section 3.18(c), or
by the Master Servicer or the Majority Certificateholder of the Controlling
Class pursuant to Section 9.01. With respect to any REO Property (and the
related REO Loan), any of the following events: (x) a Final Recovery
Determination is made with respect to such REO Property; or (y) such REO
Property is purchased by the Master Servicer or the Majority Certificateholder
of the Controlling Class pursuant to Section 9.01.
"Liquidation Expenses": All customary, reasonable and necessary "out of
pocket" costs and expenses due and owing (but not otherwise covered by Servicing
Advances) in connection with the liquidation of any Specially Serviced Mortgage
Loan or REO Property pursuant to Section 3.09 or 3.18 (including, without
limitation, legal fees and expenses, committee or referee fees and, if
applicable, brokerage commissions and conveyance taxes).
"Liquidation Fee": With respect to each Specially Serviced Mortgage
Loan or REO Property (other than any Specially Serviced Mortgage Loan or REO
Property repurchased (x) by the Mortgage Loan Seller or any Affiliate thereof
pursuant to Section 2.03 within 120 days of the Mortgage Loan Seller's notice or
discovery of the breach or Document Defect giving rise to such repurchase
obligation, (y) by the Majority Certificateholder of the Controlling Class, the
Master Servicer or the Special Servicer pursuant to Section 3.18 or (z) by the
Master Servicer or the Majority Certificateholder of the Controlling Class
pursuant to Section 9.01), the fee designated as such and payable to the Special
Servicer pursuant to the fourth paragraph of Section 3.11(c).
"Liquidation Fee Rate": With respect to each Specially Serviced
Mortgage Loan or REO Property as to which a Liquidation Fee is payable, 1.0%.
"Liquidation Proceeds": All cash amounts (other than Insurance Proceeds
and REO Revenues) received by the Master Servicer or the Special Servicer in
connection with: (i) the taking of all or a part of a Mortgaged Property by
exercise of the power of eminent domain or condemnation; (ii) the liquidation of
a Mortgaged Property or other collateral constituting, or that constituted,
security for a defaulted Mortgage Loan, through trustee's sale, foreclosure
sale, REO Disposition or otherwise, exclusive of any portion thereof required to
be released to the related Mortgagor in accordance with applicable law and the
terms and conditions of the related Mortgage Note and Mortgage; (iii) the
realization upon any deficiency judgment obtained against a Mortgagor or any
guarantor; (iv) the purchase of a Defaulted Mortgage Loan by the Majority
Certificateholder of the Controlling Class pursuant to Section 3.18(b) or by the
Master Servicer or the Special Servicer pursuant to Section 3.18(c) or any other
sale thereof pursuant to Section 3.18(d); (v) the repurchase of a Mortgage Loan
by the Mortgage Loan Seller or any Affiliate thereof pursuant to Section 2.03;
or (vi) the purchase of a Mortgage Loan or REO Property by the Master Servicer
or the Majority Certificateholder of the Controlling Class pursuant to Section
9.01.
"Lost Coupon Amount": As defined in Section 4.01(d).
"Majority Certificateholder": With respect to any specified Class or
Classes of Certificates, as of any date of determination, any Holder or
particular group of Holders of Certificates of such Class or Classes, as the
case may be, entitled to a majority of the Voting Rights allocated to such Class
or Classes, as the case may be.
"Master Servicer": Midland Loan Services, L.P., its successor in
interest or any successor master servicer appointed as herein provided.
"Master Servicer Remittance Amount": With respect to any Master
Servicer Remittance Date, an amount equal to (a) all amounts on deposit in the
Certificate Account as of the commencement of business on such Master Servicer
Remittance Date, net of (b) any portion of the amounts described in clause (a)
of this definition that represents one or more of the following: (i) collected
Monthly Payments that are due on a Due Date following the end of the related
Collection Period, (ii) any payments of principal (including, without
limitation, Principal Prepayments) and interest, Liquidation Proceeds and
Insurance Proceeds received after the end of the related Collection Period,
(iii) any Prepayment Premiums received after the end of the related Collection
Period, (iv) any amounts payable or reimbursable to any Person from the
Certificate Account pursuant to any of clauses (ii) through (xvi) of Section
3.05(a), and (v) any amounts deposited in the Certificate Account in error;
provided that, with respect to the Master Servicer Remittance Date that occurs
in the same calendar month as the Final Distribution Date, the Master Servicer
Remittance Amount will be calculated without regard to clauses (b)(i), (b)(ii)
and (b)(iii) of this definition.
"Master Servicer Remittance Date": The Business Day immediately
preceding each Distribution Date.
"Master Servicing Fee": With respect to each Mortgage Loan and REO
Loan, the fee payable to the Master Servicer pursuant to Section 3.11(a) and
from which the Standby Fee and any Primary Servicing Fees are payable.
"Master Servicing Fee Rate": With respect to each Mortgage Loan (and
any related REO Loan), the rate per annum that is 0.35 basis points (0.00350%
per annum) less than the Administrative Fee Rate specified for such Mortgage
Loan in the Mortgage Loan Schedule.
"Merger and Assignment": As defined in the Preliminary Statement.
"Midland": Midland Loan Services, L.P., or its successor in interest.
"Modified Mortgage Loan": Any Mortgage Loan as to which any Servicing
Transfer Event has occurred and which has been modified by the Special Servicer
pursuant to Section 3.20 in a manner that:
(A) affects the amount or timing of any payment of principal
or interest due thereon (other than, or in addition to, bringing
current Monthly Payments with respect to such Mortgage Loan);
(B) except as expressly contemplated by the related Mortgage,
results in a release of the lien of the Mortgage on any material
portion of the related Mortgaged Property without a corresponding
Principal Prepayment in an amount not less than the fair market value
(as is), as determined by an Appraisal delivered to the Special
Servicer (at the expense of the related Mortgagor and upon which the
Special Servicer may conclusively rely), of the property to be
released; or
(C) in the good faith and reasonable judgment of the Special
Servicer, otherwise materially impairs the security for such Mortgage
Loan or reduces the likelihood of timely payment of amounts due
thereon.
"Monthly Payment": With respect to any Mortgage Loan, for any Due Date
as of which such Mortgage Loan is outstanding, the scheduled monthly payment of
principal and/or interest on such Mortgage Loan, including, without limitation,
a Balloon Payment, that is actually payable by the related Mortgagor from time
to time under the terms of the related Mortgage Note (as such terms may be
changed or modified in connection with a bankruptcy or similar proceeding
involving the related Mortgagor or a modification, waiver or amendment of such
Mortgage Loan granted or agreed to by the Master Servicer or Special Servicer
pursuant to Section 3.20) and applicable law.
"Moody's": Moody's Investors Service, Inc. or its successor in
interest. If neither such rating agency nor any successor remains in existence,
"Moody's" shall be deemed to refer to such other nationally recognized
statistical rating agency or other comparable Person designated by the
Depositor, notice of which designation shall be given to the Trustee, the Master
Servicer, the Special Servicer and the REMIC Administrator, and specific ratings
of Moody's Investors Service, Inc. herein referenced shall be deemed to refer to
the equivalent ratings of the party so designated.
"Mortgage": With respect to any Mortgage Loan, separately and
collectively, as the context may require, each mortgage, deed of trust and/or
other similar document or instrument securing the related Mortgage Note and
creating a lien on the related Mortgaged Property.
"Mortgage File": With respect to any Mortgage Loan, subject to Section
2.01(c), collectively the following documents:
(i) the original Mortgage Note, endorsed by the most
recent endorsee prior to the Trustee or, if none, by
the originator, without recourse, either in blank or
to the order of the Trustee in the following form:
"Pay to the order of Norwest Bank Minnesota, National
Association, as trustee for the registered holders of
NationsLink Funding Corporation, Commercial Mortgage
Pass-Through Certificates, Series 1998-1, without
recourse";
(ii) the original or a copy of the Mortgage and, if
applicable, the originals or copies of any
intervening assignments thereof showing a complete
chain of assignment from the originator of the
Mortgage Loan to the most recent assignee of record
thereof prior to the Trustee, if any, in each case
with evidence of recording indicated thereon;
(iii) an original assignment of the Mortgage, in recordable
form, executed by the most recent assignee of record
thereof prior to the Trustee or, if none, by the
originator, in favor of the Trustee (in such
capacity);
(iv) the original or a copy of any related Assignment of
Leases (if any such item is a document separate from
the Mortgage) and, if applicable, the originals or
copies of any intervening assignments thereof showing
a complete chain of assignment from the originator of
the Mortgage Loan to the most recent assignee of
record thereof prior to the Trustee, if any, in each
case with evidence of recording thereon;
(v) an original assignment of any related Assignment of
Leases (if any such item is a document separate from
the Mortgage), in recordable form, executed by the
most recent assignee of record thereof prior to the
Trustee or, if none, by the originator, in favor of
the Trustee (in such capacity), which assignment may
be included as part of the corresponding assignment
of Mortgage referred to in clause (iii) above;
(vi) an original or copy of any related Security Agreement
(if such item is a document separate from the
Mortgage) and, if applicable, the originals or copies
of any intervening assignments thereof showing a
complete chain of assignment from the originator of
the Mortgage Loan to the most recent assignee of
record thereof prior to the Trustee, if any;
(vii) an original assignment of any related Security
Agreement (if such item is a document separate from
the Mortgage) executed by the most recent assignee of
record thereof prior to the Trustee or, if none, by
the originator, in favor of the Trustee (in such
capacity), which assignment may be included as part
of the corresponding assignment of Mortgage referred
to in clause (iii) above;
(viii) originals or copies of all assumption, modification,
written assurance and substitution agreements, with
evidence of recording thereon if appropriate, in
those instances where the terms or provisions of the
Mortgage, Mortgage Note or any related security
document have been modified or the Mortgage Loan has
been assumed;
(ix) the original or a copy of the lender's title
insurance policy issued as of the date of the
origination of the Mortgage Loan, together with all
endorsements or riders (or copies thereof) that were
issued with or subsequent to the issuance of such
policy, insuring the priority of the Mortgage as a
first lien on the Mortgaged Property;
(x) the original of any guaranty of the obligations of
the Mortgagor under the Mortgage Loan which was in
the possession of the Mortgage Loan Seller at the
time the Mortgage Files were delivered to the
Trustee;
(xi) (A) file or certified copies of any UCC Financing
Statements and continuation statements which were
filed in order to perfect (and maintain the
perfection of) any security interest held by the
originator of the Mortgage Loan (and each assignee of
record prior to the Trustee) in and to the personalty
of the Mortgagor at the Mortgaged Property (in each
case with evidence of filing thereon) and which were
in the possession of the Mortgage Loan Seller at the
time the Mortgage Files were delivered to the Trustee
and (B) if any such security interest is perfected
and the related UCC-1, UCC-2 or UCC-3 financing
statements were in the possession of the Mortgage
Loan Seller, a UCC-2 or UCC-3 financing statement, as
applicable, executed by the most recent assignee of
record prior to the Trustee or, if none, by the
originator, evidencing the transfer of such security
interest to the Trustee (or a certified copy of such
assignment as sent for filing);
(xii) the original or a copy of the power of attorney (with
evidence of recording thereon, if appropriate)
granted by the Mortgagor if the Mortgage, Mortgage
Note or other document or instrument referred to
above was signed on behalf of the Mortgagor;
(xiii) if the Mortgagor has a leasehold interest in the
related Mortgaged Property, the original Ground Lease
or a copy thereof;
(xiv) the original or copy of any intercreditor agreement
relating to such Mortgage Loan;
(xv) the original or copy of any operating lease relating
to the related Mortgaged Property;
(xvi) the original or a copy of the related loan agreement;
(xvii) the original or a copy of any management agreement
relating to such Mortgage Loan;
(xviii) the original or a copy of any lock-box agreement
relating to such Mortgage Loan;
(xix) the original or a copy of any environmental report
relating to such Mortgage Loan;
(xx) with respect to each Mortgage Loan as to which the
related Mortgaged Property is operated as a franchise
restaurant, the original or a copy of any franchise
agreement relating to such Mortgage Loan; and
(xxi) any additional documents required to be added to the
Mortgage File pursuant to this Agreement;
provided that whenever the term "Mortgage File" is used to refer to documents
actually received by the Trustee or a Custodian appointed thereby, such term
shall not be deemed to include such documents and instruments required to be
included therein unless they are actually so received.
"Mortgage Loan": Each of the mortgage loans transferred and assigned to
the Trustee pursuant to Section 2.01 and from time to time held in the Trust
Fund. As used herein, the term "Mortgage Loan" includes the related Mortgage
Note, Mortgage and other security documents contained in the related Mortgage
File.
"Mortgage Loan Purchase Agreement": The Mortgage Loan Purchase
Agreement, dated as of March 25, 1998, between NationsBank, N.A. and NationsLink
Funding Corporation.
"Mortgage Loan Schedule": The list of Mortgage Loans transferred on the
Closing Date to the Trustee as part of the Trust Fund, which list is attached
hereto as Schedule I and may be amended from time to time in accordance with
Section 2.02(e). The Mortgage Loan Schedule shall set forth, among other things,
the following information with respect to each Mortgage Loan:
(i) the loan number and control number;
(ii) the street address or addresses (including city, state and zip
code) of the related Mortgaged Property;
(iii) the Mortgage Rate in effect as of the Cut-off Date;
(iv) the original principal balance;
(v) the Cut-off Date Balance;
(vi) the (A) remaining term to stated maturity and (B) Stated
Maturity Date;
(vii) the Due Date;
(viii) the amount of the Monthly Payment due on the first Due Date
following the Cut-off Date;
(ix) the Administrative Fee Rate (inclusive of the Primary
Servicing Fee Rate);
(x) the Primary Servicing Fee Rate;
(xi) the Master Servicing Fee Rate;
(xii) whether the Mortgagor's interest in the related Mortgaged
Property is a leasehold estate;
(xiii) whether the Mortgage Loan is a Cross-Collateralized Mortgage
Loan and, if so, a reference to the other Mortgage Loans that
are cross-collateralized with such Mortgage Loan;
(xiv) the property type (e.g., multifamily);
(xv) the property size (the square feet or units); and
(xvi) the original amortization term.
The Mortgage Loan Schedule shall also set forth the aggregate Cut-off Date
Balance for all of the Mortgage Loans. Such list may be in the form of more than
one list, collectively setting forth all of the information required.
"Mortgage Loan Seller": NationsBank, N.A..
"Mortgage Note": The original executed note evidencing the indebtedness
of a Mortgagor under a Mortgage Loan, together with any rider, addendum or
amendment thereto.
"Mortgage Pool": Collectively, all of the Mortgage Loans and any
successor REO Loans.
"Mortgage Rate": With respect to (i) any Mortgage Loan on or prior to
its Stated Maturity Date, the annualized rate at which interest is scheduled (in
the absence of a default) to accrue on such Mortgage Loan from time to time in
accordance with the terms of the related Mortgage Note (as such may be modified
at any time following the Closing Date) and applicable law, (ii) any Mortgage
Loan after its Stated Maturity Date, the annualized rate described in clause (i)
above determined without regard to the passage of such Stated Maturity Date, and
(iii) any REO Loan, the annualized rate described in clause (i) or (ii) above,
as applicable, determined as if the related Mortgage Loan had remained
outstanding.
"Mortgaged Property": Individually and collectively, as the context may
require, each real property (together with all improvements and fixtures
thereon) subject to the lien of a Mortgage and constituting collateral for a
Mortgage Loan. With respect to any Cross-Collateralized Mortgage Loan, as the
context may require, "Mortgaged Property" may mean, collectively, all the
Mortgaged Properties securing such Cross-Collateralized Mortgage Loan.
"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.
"NationsBank, N.A.": NationsBank, N.A., or its successor in interest.
"NationsBank Mortgage Loans": As defined in the Preliminary Statement.
"Net Aggregate Prepayment Interest Shortfall": With respect to any
Distribution Date, the amount, if any, by which (a) the aggregate of all
Prepayment Interest Shortfalls incurred in connection with the receipt of
Principal Prepayments on the Mortgage Loans during the related Collection
Period, exceeds (b) the aggregate amount remitted by the Master Servicer for
deposit in the Distribution Account for such Distribution Date pursuant to
Section 3.19(e) in connection with such Prepayment Interest Shortfalls.
"Net Default Charges": With respect to any Mortgage Loan or REO Loan,
any Default Charges actually collected thereon (determined in accordance with
the allocation of amounts collected as specified in Section 1.02), net of (if,
but only if, such Default Charges are allocable to the period that such Mortgage
Loan was a Specially Serviced Mortgage Loan) any Advance Interest accrued on
Advances made in respect of such Mortgage Loan that are reimbursable from such
Default Charges in accordance with Section 3.05(a)(viii).
"Net Investment Earnings": With respect to any Investment Account for
any Collection Period, the amount, if any, by which the aggregate of all
interest and other income realized during such Collection Period on funds held
in such Investment Account, exceeds the aggregate of all losses and investment
costs, if any, incurred during such Collection Period in connection with the
investment of such funds in accordance with Section 3.06.
"Net Investment Loss": With respect to any Investment Account for any
Collection Period, the amount by which the aggregate of all losses and
investment costs, if any, incurred during such Collection Period in connection
with the investment of funds held in such Investment Account in accordance with
Section 3.06, exceeds the aggregate of all interest and other income realized
during such Collection Period on such funds.
"Net Mortgage Rate": With respect to any Mortgage Loan or REO Loan, as
of any date of determination, a rate per annum equal to the related Mortgage
Rate then in effect, minus the related Administrative Fee Rate.
"Net Operating Income": With respect to any Mortgaged Property, the
total operating revenues derived from such Mortgaged Property, minus the total
fixed and variable operating expenses incurred in respect of such Mortgaged
Property (subject to adjustments for, among other things, (i) non-cash items
such as depreciation and amortization, (ii) capital expenditures and (iii) debt
service on loans secured by the Mortgaged Property).
"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.
"NMCC": NationsBanc Mortgage Capital Corporation or its successor in
interest.
"NMCC Mortgage Loans": As defined in the Preliminary Statement.
"Nonrecoverable Advance": Any Nonrecoverable P&I Advance or
Nonrecoverable Servicing Advance.
"Nonrecoverable P&I Advance": Any P&I Advance made or proposed to be
made in respect of a Mortgage Loan or REO Loan which, as determined by the
Master Servicer or, if applicable, the Trustee, in its reasonable and good faith
judgment, will not be recoverable (together with Advance Interest accrued
thereon), or which in fact was not ultimately recovered, from late collections,
Insurance Proceeds, Liquidation Proceeds or any other recovery on or in respect
of such Mortgage Loan or REO Property (without giving effect to potential
recoveries on deficiency judgments or recoveries from guarantors).
"Nonrecoverable Servicing Advance": Any Servicing Advance made or
proposed to be made in respect of a Mortgage Loan or REO Property which, as
determined by the Master Servicer, the Special Servicer or, if applicable, the
Trustee, in its reasonable and good faith judgment, will not be recoverable
(together with Advance Interest accrued thereon), or which in fact was not
ultimately recovered, from late collections, Insurance Proceeds, Liquidation
Proceeds or any other recovery on or in respect of such Mortgage Loan or REO
Property (without giving effect to potential recoveries on deficiency judgments
or recoveries from guarantors).
"Non-Registered Certificate": Unless and until registered under the
Securities Act, any Class F, Class G, Class H, Class J, Class K or Residual
Certificate.
"Non-United States Person": Any person other than a United States
Person.
"Officer's Certificate": A certificate signed by a Servicing Officer of
the Master Servicer or the Special Servicer or a Responsible Officer of the
Trustee, as the case may be.
"Operating Statement Analysis": As defined in Section 4.02(b).
"Opinion of Counsel": A written opinion of counsel (who must, in
connection with any opinion rendered pursuant hereto with respect to tax matters
or a resignation under Section 6.04, be Independent counsel, but who otherwise
may be salaried counsel for the Depositor, the Mortgage Loan Seller, the
Trustee, the REMIC Administrator, the Master Servicer or the Special Servicer),
which written opinion is acceptable and delivered to the addressee(s).
"Original Trust Agreement": As defined in the Preliminary Statement.
"OTS": The Office of Thrift Supervision or any successor thereto.
"Ownership Interest": As to any Certificate, any ownership or security
interest in such Certificate as the Holder thereof and any other interest
therein, whether direct or indirect, legal or beneficial, as owner or as
pledgee.
"Pass-Through Rate": With respect to any Class of Sequential Pay
Certificates, for any Distribution Date, the fixed rate per annum specified as
such in respect of such Class of Certificates in the Preliminary Statement
hereto. With respect to the Class X-1 Certificates, for any Distribution Date,
the Class X-1 Pass-Through Rate. With respect to the Class X-2 Certificates, for
any Distribution Date, the Class X-2 Pass-Through Rate.
"Payment Priority": With respect to any Class of Certificates, the
priority of the Holders thereof in respect of the Holders of the other Classes
of Certificates to receive distributions out of the Available Distribution
Amount for any Distribution Date. The Payment Priority of the respective Classes
of Certificates shall be, in descending order, as follows: first, the respective
Classes of Senior Certificates, pro rata; second, the Class B Certificates;
third, the Class C Certificates; fourth, the Class D Certificates; fifth, the
Class E Certificates; sixth, the Class F Certificates; seventh, the Class G
Certificates; eighth, the Class H Certificates; ninth, the Class J Certificates;
tenth, the Class K Certificates; and last, the respective Classes of Residual
Certificates.
"Percentage Interest": With respect to any REMIC II Regular
Certificate, the portion of the relevant Class evidenced by such Certificate,
expressed as a percentage, the numerator of which is the Certificate Principal
Balance or Certificate Notional Amount, as the case may be, of such Certificate
as of the Closing Date, as specified on the face thereof, and the denominator of
which is the Initial Class Principal Balance or Initial Class Notional Amount,
as the case may be, of the relevant Class. With respect to a Residual
Certificate, the percentage interest in distributions to be made with respect to
the relevant Class, as stated on the face of such Certificate.
"Permitted Investments": Any one or more of the following obligations:
(i) direct obligations of, or obligations fully guaranteed as
to timely payment of principal and interest by, the United States or
any agency or instrumentality thereof, provided such obligations are
backed by the full faith and credit of the United States;
(ii) repurchase obligations with respect to any security
described in clause (i) above, provided that the long-term unsecured
debt obligations of the party agreeing to repurchase such obligations
are rated "Aaa" by Moody's, "AAA" by DCR and "AAA" by Fitch);
(iii) certificates of deposit, time deposits, demand deposits
and bankers' acceptances of any bank or trust company organized under
the laws of the United States or any state, provided that (a) the
long-term unsecured debt obligations of such bank or trust company are
rated "Aaa" by Moody's, "AAA" by DCR and "AAA" by Fitch or (b) the
short-term unsecured debt obligations of such bank or trust company are
rated no less than "P-1" by Moody's, "D-1+" by DCR and "F-1+" by Fitch
or (c) if both such long-term and short-term unsecured debt obligations
have been rated by any of the Rating Agencies, then each must be rated
as specified in the immediately preceding clauses (a) and (b) with
respect to such Rating Agency;
(iv) commercial paper (having original maturities of not more
than 365 days) of any corporation incorporated under the laws of the
United States or any state thereof rated no less than "P-1" by Moody's,
"D-1+" by DCR and "F-1+" by Fitch; and
(v) any other obligation or security which would not result in
the downgrade, qualification or withdrawal of the rating then assigned
by any of the Rating Agencies to any Class of Certificates, evidence of
which shall be confirmed in writing by each Rating Agency to the
Trustee;
provided that no investment described hereunder shall evidence either the right
to receive (a) only interest with respect to such investment or (b) a yield to
maturity greater than 120% of the yield to maturity at par of the underlying
obligations; and provided, further, that no investment described hereunder may
be purchased at a price greater than par if such investment may be prepaid or
called at a price less than its purchase price prior to stated maturity; and
provided, further, that each investment described hereunder shall, by its terms,
have a predetermined fixed amount of principal due at maturity (that cannot vary
or change) and either a fixed interest rate or variable interest rate tied to a
single interest rate index plus a single fixed spread; and provided, further,
that each investment described hereunder shall be a "cash flow investment", as
defined in the REMIC Provisions.
"Permitted Transferee ": Any Transferee of a Residual Certificate other
than either a Disqualified Organization or a Non-United States Person or any
nominee, agent or middleman of either.
"Person": Any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization, limited
liability company or government or any agency or political subdivision thereof.
"Phase I Environmental Assessment": A "Phase I assessment" as described
in, and meeting the criteria of, (i) Chapter 5 of the FNMA Multifamily Guide or
any successor provisions covering the same subject matter, in the case of
Specially Serviced Mortgage Loans as to which the related Mortgaged Property is
multifamily property or (ii) the American Society for Testing and Materials in
the case of Specially Serviced Mortgage Loans as to which the related Mortgaged
Property is a non-multifamily property.
"P&I Advance": As to any Mortgage Loan or REO Loan, any advance made by
the Master Servicer or the Trustee pursuant to Section 4.03.
"Plan": As defined in Section 5.02(c).
"Prepayment Assumption": The assumption that no Mortgage Loan is
prepaid prior to its Stated Maturity Date, such assumption to be used for
determining the accrual of original issue discount, market discount and premium,
if any, on the Mortgage Loans, the REMIC I Regular Interests and the
Certificates for federal income tax purposes.
"Prepayment Interest Excess": With respect to any Mortgage Loan that
was subject to a Principal Prepayment in full or in part made on or prior to the
Determination Date in any calendar month but after the first day of such month,
any payment of interest (net of related Servicing Fees and exclusive of
Prepayment Premiums) actually collected from the related Mortgagor and intended
to cover the period from the commencement of such month to the date of
prepayment.
"Prepayment Interest Shortfall": With respect to any Mortgage Loan that
was subject to a Principal Prepayment in full or in part made after the
Determination Date in any calendar month, the amount of uncollected interest
(determined without regard to any Prepayment Premium that may have been
collected) that would have accrued at a per annum rate equal to the sum of the
Net Mortgage Rate for such Mortgage Loan plus the Trustee Fee Rate, on the
amount of such Principal Prepayment during the period commencing on the date as
of which such Principal Prepayment was applied to such Mortgage Loan and ending
on the last day of such calendar month, inclusive.
"Prepayment Premium": Any premium, penalty or fee paid or payable, as
the context requires, by a Mortgagor in connection with a Principal Prepayment
on, or other early collection of principal of, a Mortgage Loan or any successor
REO Loan.
"Primary Servicing Fee": With respect to each Mortgage Loan that is
subject to a Sub-Servicing Agreement as of the Closing Date, the monthly fee
payable to the Sub-Servicer by the Master Servicer from the Master Servicing
Fee.
"Primary Servicing Fee Rate": With respect to each Mortgage Loan that
is subject to a Sub-Servicing Agreement as of the Closing Date, the rate per
annum specified as such in the Mortgage Loan Schedule.
"Primary Servicing Office": With respect to the Master Servicer, the
office thereof primarily responsible for performing its respective duties under
this Agreement, initially located in Missouri and, with respect to the Special
Servicer, the office thereof primarily responsible for performing its respective
duties under this Agreement, initially located in Florida.
"Principal Distribution Amount": With respect to any Distribution Date,
the aggregate of the Current Principal Distribution Amount for such Distribution
Date and, if such Distribution Date is subsequent to the initial Distribution
Date, the excess, if any, of the Principal Distribution Amount for the preceding
Distribution Date, over the aggregate distributions of principal made on the
Sequential Pay Certificates on the preceding Distribution Date.
"Principal Prepayment": Any payment of principal made by the Mortgagor
on a Mortgage Loan which is received in advance of its scheduled Due Date and
which is not accompanied by an amount of interest (without regard to any
Prepayment Premium that may have been collected) representing scheduled interest
due on any date or dates in any month or months subsequent to the month of
prepayment.
"Prospectus Supplement": That certain prospectus supplement dated March
9, 1998, relating to the Registered Certificates, that is a supplement to the
Base Prospectus.
"Purchase Price": With respect to any Mortgage Loan, a price equal to
the unpaid principal balance of the Mortgage Loan as of the date of purchase,
together with (a) all accrued and unpaid interest on the Mortgage Loan at the
related Mortgage Rate to but not including the Due Date in the Collection Period
of purchase, (b) all related unreimbursed Servicing Advances, and (c) if paid in
connection with any repurchase of such Mortgage Loan by the Mortgage Loan Seller
or any Affiliate thereof pursuant to Section 2.03, all accrued and unpaid
Advance Interest in respect of related Advances. With respect to any REO
Property, a price equal to the unpaid principal balance of the related REO Loan
as of the date of purchase, together with (a) all accrued and unpaid interest on
such REO Loan at the related Mortgage Rate to but not including the Due Date in
the Collection Period of purchase, (b) all related unreimbursed Servicing
Advances, and (c) if paid in connection with any repurchase of such REO Property
by the Mortgage Loan Seller or any Affiliate thereof pursuant to Section 2.03,
all accrued and unpaid Advance Interest in respect of related Advances. The
Purchase Price of any Mortgage Loan or REO Property is intended to include,
without limitation, principal and interest previously advanced with respect
thereto and not previously reimbursed.
"PV Yield Loss Amount": As defined in Section 4.01(d).
"Qualified Appraiser": In connection with the appraisal of any
Mortgaged Property or REO Property, an Independent MAI-designated appraiser with
at least five years of experience in respect of the relevant geographic location
and property type.
"Qualified Institutional Buyer": As defined in Section 5.02(b).
"Qualified Insurer": An insurance company or security or bonding
company qualified to write the related Insurance Policy in the relevant
jurisdiction.
"Rating Agency": Each of Fitch, Moody's and DCR.
"Rated Final Distribution Date": As to each Class of Certificates,
March 20, 2030.
"Realized Loss": With respect to each defaulted Mortgage Loan as to
which a Final Recovery Determination has been made, or with respect to any REO
Loan as to which a Final Recovery Determination has been made as to the related
REO Property, an amount (not less than zero) equal to (i) the unpaid principal
balance of such Mortgage Loan or REO Loan, as the case may be, as of the
commencement of the Collection Period in which the Final Recovery Determination
was made, plus (ii) all accrued but unpaid interest on such Mortgage Loan or REO
Loan, as the case may be (without taking into account the amounts described in
subclause (iv) of this sentence), at the related Mortgage Rate to but not
including the Due Date in the Collection Period in which the Final Recovery
Determination was made, plus (iii) any related unreimbursed Servicing Advances
as of the commencement of the Collection Period in which the Final Recovery
Determination was made, together with any new related Servicing Advances made
during such Collection Period, minus (iv) all payments and proceeds, if any,
received in respect of such Mortgage Loan or REO Loan, as the case may be,
during the Collection Period in which such Final Recovery Determination was made
(net of any related Liquidation Expenses paid therefrom).
With respect to any Mortgage Loan as to which any portion of the
outstanding principal or accrued interest owed thereunder was forgiven in
connection with a bankruptcy or similar proceeding involving the related
Mortgagor or a modification, waiver or amendment of such Mortgage Loan granted
or agreed to by the Master Servicer or Special Servicer pursuant to Section
3.20, the amount of such principal or interest (other than any Default Interest)
so forgiven.
With respect to any Mortgage Loan as to which the Mortgage Rate thereon
has been permanently reduced and not recaptured for any period in connection
with a bankruptcy or similar proceeding involving the related Mortgagor or a
modification, waiver or amendment of such Mortgage Loan granted or agreed to by
the Master Servicer or Special Servicer pursuant to Section 3.20, the amount of
the consequent reduction, if any, in the interest portion of each successive
Monthly Payment due thereon. Each such Realized Loss shall be deemed to have
been incurred on the Due Date for each affected Monthly Payment.
"Record Date": With respect to each Class of Certificates, for any
Distribution Date, the last Business Day of the calendar month immediately
preceding the month in which such Distribution Date occurs.
"Registered Certificates": The Class X-1, Class X-2, Class A-1, Class
A-2, Class A-3, Class B, Class C, Class D and Class E Certificates.
"Reimbursement Rate": The rate per annum applicable to the accrual of
Advance Interest, which rate per annum shall be equal to the "prime rate" as
published in the "Money Rates" section of The Wall Street Journal, as such
"prime rate" may change from time to time. If The Wall Street Journal ceases to
publish such "prime rate", then the Trustee, in its sole discretion, shall
select an equivalent publication that publishes such "prime rate"; and if such
"prime rate" is no longer generally published or is limited, regulated or
administered by a governmental or quasi-governmental body, then the Trustee
shall select a comparable interest rate index. In either case, such selection
shall be made by the Trustee in its sole discretion and the Trustee shall notify
the Master Servicer and the Special Servicer in writing of its selection.
"Reinvestment Yield": As defined in Section 4.01(d).
"REMIC": A "real estate mortgage investment conduit" as defined in
Section 860D of the Code.
"REMIC Administrator": Norwest Bank Minnesota, National Association,
its successor in interest, or any successor REMIC administrator appointed as
herein provided.
"REMIC I": A segregated pool of assets subject hereto and to be
administered hereunder, with respect to which a REMIC election is to be made,
consisting of: (i) the Mortgage Loans as from time to time are subject to this
Agreement and all payments under and proceeds of such Mortgage Loans received or
receivable after the Cut-off Date (other than payments of principal, interest
and other amounts due and payable on the Mortgage Loans on or before the Cut-off
Date), together with all documents, Escrow Payments and Reserve Funds delivered
or caused to be delivered hereunder with respect to such Mortgage Loans by the
Mortgage Loan Seller; (ii) any REO Property acquired in respect of a Mortgage
Loan and all payments and proceeds of such REO Property; and (iii) such amounts
on or with respect to clauses (i) or (ii) as from time to time are deposited in
the Distribution Account, the Certificate Account and the REO Account (if
established).
"REMIC I Distribution Amount": As defined in Section 4.01(a)(ii).
"REMIC I Regular 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 LJ, Class LK, Class LWAC-1 and Class LWAC-2 Uncertificated Interests.
"REMIC I Remittance Rate": With respect to any REMIC I Regular
Interest, the rate specified in Section 4.01(c).
"REMIC II": A segregated pool of assets subject hereto and to be
administered hereunder, and consisting of all of the REMIC I Regular Interests
and amounts distributed thereon as from time to time are held in the REMIC II
Distribution Account.
"REMIC II Certificate": Any Certificate, other than a Class R-I
Certificate.
"REMIC II Distribution Account": The segregated account or accounts
created and maintained as a separate trust account or accounts by the Trustee
pursuant to Section 3.04, which shall be entitled "Norwest Bank Minnesota,
National Association, as Trustee, in trust for Holders of NationsLink Funding
Corporation, Commercial Mortgage Pass-Through Certificates, Series 1998-1, REMIC
II Distribution Account" and which account shall be an Eligible Account.
"REMIC II Regular Certificate": Any REMIC II Certificate, other than a
Class R-II Certificate.
"REMIC Provisions": Provisions of the federal income tax law relating
to real estate mortgage investment conduits, which appear at Sections 860A
through 860G of Subchapter M of Chapter 1 of the Code, and related provisions,
and temporary and final Treasury regulations (or proposed regulations that would
apply by reason of their proposed effective date to the extent not inconsistent
with temporary or final regulations) and any rulings promulgated thereunder, as
the foregoing may be in effect from time to time.
"Rents from Real Property": With respect to any REO Property, gross
income of the character described in Section 856(d) of the Code.
"REO Account": A segregated custodial account or accounts created and
maintained by the Special Servicer pursuant to Section 3.16 on behalf of the
Trustee in trust for the Certificateholders, which shall be entitled "Lennar
Partners, Inc., as Special Servicer, in trust for registered holders of
NationsLink Funding Corporation, Commercial Mortgage Pass-Through Certificates,
Series 1998-1, REO Account".
"REO Disposition": The sale or other disposition of the REO Property
pursuant to Section 3.18(d).
"REO Extension": As defined in Section 3.16(a).
"REO Loan": The mortgage loan deemed for purposes hereof to be
outstanding with respect to each REO Property acquired in respect of any
Mortgage Loan. Each REO Loan shall be deemed to provide for monthly payments of
principal and/or interest equal to its Assumed Monthly Payment and otherwise to
have the same terms and conditions as the predecessor Mortgage Loan. Each REO
Loan shall be deemed to have an initial unpaid principal balance and Stated
Principal Balance equal to the unpaid principal balance and Stated Principal
Balance, respectively, of the predecessor Mortgage Loan as of the date of the
related REO Acquisition. In addition, all Monthly Payments (other than any
Balloon Payment), Assumed Monthly Payments (in the case of a Balloon Mortgage
Loan delinquent in respect of its Balloon Payment) and other amounts due and
owing, or deemed to be due and owing, in respect of the predecessor Mortgage
Loan as of the date of the related REO Acquisition, shall be deemed to continue
to be due and owing in respect of an REO Loan. All amounts payable or
reimbursable to the Master Servicer, the Special Servicer and/or the Trustee in
respect of the related Mortgage Loan as of the date of the related REO
Acquisition, including, without limitation, any unpaid Servicing Fees and any
unreimbursed Advances, together with any Advance Interest accrued and payable to
the Master Servicer, Special Servicer and/or the Trustee in respect of such
Advances, shall continue to be payable or reimbursable to the Master Servicer,
Special Servicer and/or Trustee as the case may be, in respect of an REO Loan.
"REO Property": A Mortgaged Property acquired by the Special Servicer
on behalf of the Trustee for the benefit of the Certificateholders pursuant to
Section 3.09 through foreclosure, acceptance of a deed-in-lieu of foreclosure or
otherwise in accordance with applicable law in connection with the default or
imminent default of a Mortgage Loan.
"REO Revenues": All income, rents, profits and proceeds derived from
the ownership, operation or leasing of any REO Property.
"REO Status Report": A report or reports substantially in the form of
Exhibit E attached hereto setting forth, among other things, with respect to
each REO Property that was included in the Trust Fund as of the close of
business on the Determination Date immediately preceding the preparation of such
report or reports, (i) the Acquisition Date of such REO Property, (ii) the
amount of income collected with respect to any REO Property (net of related
expenses) and other amounts, if any, received on such REO Property during the
Collection Period ending on such Determination Date and (iii) the value of the
REO Property based on the most recent Appraisal or other valuation thereof
available to the Master Servicer as of such Determination Date (including any
valuation prepared internally by the Special Servicer).
"Request for Release": A request for release signed by a Servicing
Officer of, as applicable, the Master Servicer or Special Servicer in the form
of Exhibit D attached hereto.
"Required Appraisal Loan": As defined in Section 3.19(b).
"Required Claims-Paying Ratings": With respect to any insurance
carrier, claims-paying ability ratings at least equal to the following minimum
ratings assigned to such carrier by at least two of the following parties and,
in any event, by each Rating Agency that assigned a rating to the claims-paying
ability of such insurance carrier: Moody's ("A2" or better), DCR ("A" or
better), Fitch ("A" or better), Standard & Poor's Ratings Services, a Division
of the McGraw-Hill Companies, Inc. ("A" or better) and A.M. Best ("A:IX" or
better); unless each of the Rating Agencies has confirmed in writing that an
insurance company with lower or fewer claims-paying ability ratings shall not
result, in and of itself, in a downgrading, withdrawal or qualification of the
then current rating assigned by such Rating Agency to any Class of Certificates.
"Reserve Account": The account or accounts created and maintained
pursuant to Section 3.03(d).
"Reserve Funds": With respect to any Mortgage Loan, any amounts
delivered by the related Mortgagor to be held in escrow by or on behalf of the
mortgagee representing reserves for principal and interest payments, repairs,
replacements, capital improvements (including, without limitation, tenant
improvements and leasing commissions), and/or environmental testing and
remediation with respect to the related Mortgaged Property.
"Residual Certificate": Any Class R-I or Class R-II Certificate.
"Responsible Officer": When used with respect to the Trustee, any
officer assigned to the Corporate Trust Services Group, any vice president, any
assistant vice president, any assistant secretary, any assistant treasurer, or
any other officer of the Trustee customarily performing functions similar to
those performed by any of the above designated officers to whom a particular
matter is referred by the Trustee because of such officer's knowledge of and
familiarity with the particular subject. When used with respect to any
Certificate Registrar (other than the Trustee), any officer or assistant officer
thereof.
"Securities Act": The Securities Act of 1933, as amended.
"Security Agreement": With respect to any Mortgage Loan, any security
agreement, chattel mortgage or similar document or instrument, whether contained
in the related Mortgage or executed separately, creating in favor of the holder
of such Mortgage a security interest in the personal property constituting
security for repayment of such Mortgage Loan.
"Senior Certificate": Any Class A-1, Class A-2, Class A-3, Class X-1 or
Class X-2 Certificate.
"Senior Principal Distribution Cross-Over Date": The first Distribution
Date as of which the aggregate Class Principal Balance of the Class A-1, Class
A-2 and Class A-3 Certificates outstanding immediately prior to such
Distribution Date exceeds the sum of (a) the aggregate Stated Principal Balance
of the Mortgage Pool that will be outstanding immediately following such
Distribution Date, plus (b) the lesser of (i) the Principal Distribution Amount
for such Distribution Date and (ii) the portion of the Available Distribution
Amount for such Distribution Date that will remain after the distributions of
interest to be made on the Senior Certificates on such Distribution Date have
been so made.
"Sequential Pay Certificate": Any Class A, Class B, Class C, Class D,
Class E, Class F, Class G, Class H, Class J or Class K Certificate.
"Servicer Reports": As defined in Section 4.02.
"Servicing Account": The account or accounts created and maintained
pursuant to Section 3.03(a).
"Servicing Advances": All customary, reasonable and necessary "out of
pocket" costs and expenses incurred or to be incurred, as the context requires,
by the Master Servicer or the Special Servicer (or, if applicable, the Trustee)
in connection with the servicing of a Mortgage Loan after a default, delinquency
or other unanticipated event, or in connection with the administration of any
REO Property, including, but not limited to, the cost of (a) compliance with the
obligations of the Master Servicer and/or the Special Servicer set forth in
Sections 3.03(c) and 3.09, (b) the preservation, insurance, restoration,
protection and management of a Mortgaged Property, (c) obtaining any Liquidation
Proceeds or Insurance Proceeds in respect of any Mortgage Loan or REO Property,
(d) any enforcement or judicial proceedings with respect to a Mortgaged
Property, including, without limitation, foreclosures, and (e) the operation,
management, maintenance and liquidation of any REO Property; provided that
notwithstanding anything to the contrary, "Servicing Advances" shall not include
allocable overhead of the Master Servicer or the Special Servicer, such as costs
for office space, office equipment, supplies and related expenses, employee
salaries and related expenses and similar internal costs and expenses, or costs
incurred by either such party in connection with its purchase of any Mortgage
Loan or REO Property pursuant to any provision of this Agreement. All Emergency
Advances made by the Special Servicer hereunder shall be considered "Servicing
Advances" for the purposes hereof.
"Servicing Fees": With respect to each Mortgage Loan and REO Loan, the
Master Servicing Fee and the Special Servicing Fee.
"Servicing File": Any documents (other than documents required to be
part of the related Mortgage File), including, without limitation, the related
environmental site assessment report(s) referred to in Section 2.05(c)(xiv), in
the possession of the Master Servicer or the Special Servicer and relating to
the origination and servicing of any Mortgage Loan.
"Servicing Officer": Any officer or authorized signatory of the Master
Servicer or the Special Servicer involved in, or responsible for, the
administration and servicing of Mortgage Loans, whose name and specimen
signature appear on a list of such officers and authorized signatories furnished
by such party to the Trustee and the Depositor on the Closing Date, as such list
may be amended from time to time thereafter.
"Servicing Return Date": With respect to any Corrected Mortgage Loan,
the date that servicing thereof is returned by the Special Servicer to the
Master Servicer pursuant to Section 3.21(a).
"Servicing Standard": With respect to each of the Master Servicer and
the Special Servicer, to service and administer the Mortgage Loans and any REO
Properties for which such Person is responsible hereunder: (a) in accordance
with the higher standard of (i) the same manner in which, and with the same
care, skill, prudence and diligence with which, the Master Servicer or Special
Servicer, as the case may be, generally services and administers comparable
mortgage loans or assets, as applicable, for other third parties, and (ii) the
same manner in which, and with the same care, skill, prudence and diligence with
which, the Master Servicer or the Special Servicer, as the case may be,
generally services and administers comparable mortgage loans or assets, as
applicable, owned by it; (b) with a view to the timely collection of all Monthly
Payments of principal and interest under the Mortgage Loans or, if a Mortgage
Loan comes into and continues in default and if, in the good faith and
reasonable judgment of the Special Servicer, no satisfactory arrangements can be
made for the collection of the delinquent payments, the maximization of the
recovery on such Mortgage Loan to the Certificateholders (as a collective whole)
on a present value basis (the relevant discounting of anticipated collections
that will be distributable to Certificateholders to be performed at the related
Net Mortgage Rate); and (c) without regard to: (i) any relationship that the
Master Servicer or the Special Servicer, as the case may be, or any Affiliate
thereof may have with any related Mortgagor; (ii) the ownership of any
Certificate by the Master Servicer or the Special Servicer, as the case may be,
or by any Affiliate thereof; (iii) the Master Servicer's obligation to make
Advances; (iv) the Special Servicer's obligation to make (or to direct the
Master Servicer to make) Servicing Advances; (v) the right of the Master
Servicer (or any Affiliate thereof) or the Special Servicer (or any Affiliate
thereof), as the case may be, to receive compensation for its services or
reimbursement of costs hereunder or with respect to any particular transaction;
and (vi) any credit that it has extended to any Mortgagor (e.g. partnership
debt).
"Servicing Transfer Event": With respect to any Mortgage Loan, the
occurrence of any of the events described in clauses (a) through (h) of the
definition of "Specially Serviced Mortgage Loan".
"Similar Law": As defined in Section 5.02(e).
"Single Certificate": For purposes of Section 4.02(a), a Certificate of
any Class of REMIC II Regular Certificates evidencing a $1,000 denomination or,
in the case of a Class X-1 or Class X-2 Certificate, a 100% Percentage Interest
in the related Class.
"Special Servicer": Lennar Partners, Inc., its successor in interest,
or any successor special servicer appointed as herein provided.
"Special Servicer Loan Status Report": A report or reports setting
forth, among other things, as of the close of business on the Determination Date
immediately preceding the preparation of such report or reports, (i) the
aggregate unpaid principal balance of all Specially Serviced Mortgage Loans and
(ii) a loan-by-loan listing of all Specially Serviced Mortgage Loans indicating
their status, date and reason for transfer to the Special Servicer.
"Special Servicing Fee": With respect to each Specially Serviced
Mortgage Loan and each REO Loan, the fee designated as such and payable to the
Special Servicer pursuant to the first paragraph of Section 3.11(c).
"Special Servicing Fee Rate": With respect to each Specially Serviced
Mortgage Loan and each REO Loan, 0.25% per annum.
"Specially Serviced Mortgage Loan": Any Mortgage Loan as to which any
of the following events has occurred:
(a) the related Mortgagor has failed to make when due any
Balloon Payment, which failure has continued, or the
Master Servicer determines, in its good faith and
reasonable judgment, will continue, unremedied for 30
days; or
(b) the related Mortgagor has failed to make when due any
Monthly Payment (other than a Balloon Payment) or any
other payment required under the related Mortgage
Note or the related Mortgage, which failure has
continued, or the Master Servicer determines, in its
good faith and reasonable judgment, will continue,
unremedied for 60 days; or
(c) the Master Servicer has determined, in its good faith
and reasonable judgment, that a default in the making
of a Monthly Payment (including, without limitation,
a Balloon Payment) or any other payment required
under the related Mortgage Note or the related
Mortgage is likely to occur within 30 days and is
likely to remain unremedied for at least 60 days or,
in the case of a Balloon Payment, for at least 30
days; or
(d) there shall have occurred a default under the related
loan documents, other than as described in clause (a)
or (b) above, that may, in the Master Servicer's good
faith and reasonable judgment, materially impair the
value of the related Mortgaged Property as security
for the Mortgage Loan or otherwise materially and
adversely affect the interests of Certificateholders,
which default has continued unremedied for the
applicable cure period under the terms of the
Mortgage Loan (or, if no cure period is specified, 60
days); or
(e) a decree or order of a court or agency or supervisory
authority having jurisdiction in the premises in an
involuntary case under any present or future federal
or state bankruptcy, insolvency or similar law or the
appointment of a conservator or receiver or
liquidator in any insolvency, readjustment of debt,
marshalling of assets and liabilities or similar
proceedings, or for the winding-up or liquidation of
its affairs, shall have been entered against the
related Mortgagor and such decree or order shall have
remained in force undischarged or unstayed for a
period of 60 days; or
(f) the related Mortgagor shall have consented to the
appointment of a conservator or receiver or
liquidator in any insolvency, readjustment of debt,
marshalling of assets and liabilities or similar
proceedings of or relating to such Mortgagor or of or
relating to all or substantially all of its property;
or
(g) the related Mortgagor shall have admitted in writing
its inability to pay its debts generally as they
become due, filed a petition to take advantage of any
applicable insolvency or reorganization statute, made
an assignment for the benefit of its creditors, or
voluntarily suspended payment of its obligations; or
(h) the Master Servicer shall have received notice
of the commencement of foreclosure or similar
proceedings with respect to the related Mortgaged
Property;
provided that a Mortgage Loan will cease to be a Specially Serviced Mortgage
Loan, when a Liquidation Event has occurred in respect of such Mortgage Loan,
when the related Mortgaged Property has become an REO Property, or at such time
as such of the following as are applicable occur with respect to the
circumstances identified above that caused the Mortgage Loan to be characterized
as a Specially Serviced Mortgage Loan (and provided that no other Servicing
Transfer Event then exists):
(w) with respect to the circumstances described in
clauses (a) and (b) above, the related Mortgagor has
made three consecutive full and timely Monthly
Payments under the terms of such Mortgage Loan (as
such terms may be changed or modified in connection
with a bankruptcy or similar proceeding involving the
related Mortgagor or by reason of a modification,
waiver or amendment granted or agreed to by the
Special Servicer pursuant to Section 3.20);
(x) with respect to the circumstances described in
clauses (c), (e), (f) and (g) above, such
circumstances cease to exist in the good faith and
reasonable judgment of the Special Servicer;
(y) with respect to the circumstances described in clause
(d) above, such default is cured; and
(z) with respect to the circumstances described in clause
(h) above, such proceedings are terminated.
"Standby Fee": With respect to each Mortgage Loan and each REO Loan,
the fee designated as such and payable to the Special Servicer pursuant to the
second paragraph of Section 3.11(c).
"Standby Fee Rate": With respect to each Mortgage Loan and each REO
Loan, 0.00075% per annum.
"Startup Day": With respect to each of REMIC I and REMIC II, the day
designated as such in Section 10.01(c).
"Stated Maturity Date": With respect to any Mortgage Loan, the Due Date
on which the last payment of principal is due and payable under the terms of the
related Mortgage Note as in effect on the Closing Date, without regard to any
change in or modification of such terms in connection with a bankruptcy or
similar proceeding involving the related Mortgagor or a modification, waiver or
amendment of such Mortgage Loan granted or agreed to by the Master Servicer or
Special Servicer pursuant to Section 3.20.
"Stated Principal Balance": With respect to any Mortgage Loan (and any
successor REO Loan), a principal amount initially equal to the Cut-off Date
Balance of such Mortgage Loan, that is permanently reduced on each Distribution
Date (to not less than zero) by (i) all payments (or P&I Advances in lieu
thereof) of, and all other collections allocated as provided in Section 1.02 to,
principal of or with respect to such Mortgage Loan (or successor REO Loan) that
are (or, if they had not been applied to cover any Additional Trust Fund
Expense, would have been) distributed to Certificateholders on such Distribution
Date, and (ii) the principal portion of any Realized Loss incurred in respect of
such Mortgage Loan (or successor REO Loan) during the related Collection Period.
Notwithstanding the foregoing, if a Liquidation Event occurs in respect of any
Mortgage Loan or REO Property, then the "Stated Principal Balance" of such
Mortgage Loan or of the related REO Loan, as the case may be, shall be zero
commencing as of the Distribution Date in the Collection Period next following
the Collection Period in which such Liquidation Event occurred.
"Subordinated Certificate": Any Class B, Class C, Class D, Class E,
Class F, Class G, Class H, Class J, Class K or Residual Certificate.
"Sub-Servicer": Any Person with which the Master Servicer or the
Special Servicer has entered into a Sub-Servicing Agreement.
"Sub-Servicer Termination Compensation": As defined in Section 3.22(d).
"Sub-Servicer Termination Fee": As defined in Section 3.22(d).
"Sub-Servicing Agreement": The written contract between the Master
Servicer or the Special Servicer, on the one hand, and any Sub-Servicer, on the
other hand, relating to servicing and administration of Mortgage Loans as
provided in Section 3.22.
"Successor Servicer Retained Fee": As defined in Section 3.11(a).
"Tax Matters Person": With respect to each of REMIC I and REMIC II, the
Person designated as the "tax matters person" of such REMIC in the manner
provided under Treasury Regulations Section 1.860F-4(d) and temporary Treasury
Regulations Section 301.6231(a)(7)-1T. The "Tax Matters Person" for each of
REMIC I and REMIC II is the Holder of Certificates evidencing the largest
Percentage Interest in the related Class of Residual Certificates.
"Tax Returns": The federal income tax returns on Internal Revenue
Service Form 1066, U.S. Real Estate Mortgage Investment Conduit Income Tax
Return, including Schedule Q thereto, Quarterly Notice to Residual Interest
Holders of REMIC Taxable Income or Net Loss Allocation, or any successor forms,
to be filed on behalf of each of REMIC I and REMIC II due to its classification
as a REMIC under the REMIC Provisions, together with any and all other
information, reports or returns that may be required to be furnished to the
Certificateholders or filed with the Internal Revenue Service or any other
governmental taxing authority under any applicable provisions of federal or
Applicable State Law.
"Termination Strip": As defined in Section 3.22(d).
"Testing Date": As defined in Section 2.05(b)(xxxi).
"Transfer": Any direct or indirect transfer, sale, pledge,
hypothecation, or other form of assignment of any Ownership Interest in a
Certificate.
"Transfer Affidavit and Agreement": As defined in Section 5.02(d)(B).
"Transferable Portion": As defined in Section 3.11(a).
"Transferee": Any Person who is acquiring by Transfer any Ownership
Interest in a Certificate.
"Transferor": Any Person who is disposing by Transfer any Ownership
Interest in a Certificate.
"Trust": The common law trust created hereby.
"Trust Fund": Collectively, all of the assets of REMIC I and REMIC II.
"Trust REMICs": REMIC I and REMIC II.
"Trustee": Norwest Bank Minnesota, National Association, in its
capacity as Trustee hereunder, its successor in interest, or any successor
trustee appointed as herein provided.
"Trustee Fee": The fee payable to the Trustee on each Distribution Date
for its services as Trustee hereunder, in an aggregate amount equal to one
month's interest at the Trustee Fee Rate in respect of each Mortgage Loan and
REO Loan, calculated on the same basis as is applicable to the accrual of
interest on such Mortgage (i.e., on the basis of the actual number of days
elapsed during each calendar month in a 360-day year) and accrued on the Stated
Principal Balance of such Mortgage Loan or REO Loan, as the case may be,
immediately prior to such Distribution Date for the most recently ended calendar
month.
"Trustee Fee Rate": A rate of 0.00350% per annum.
"Trustee's Website": The website maintained by the Trustee and located
at "www.securitieslink.net/cmbs".
"UCC": The Uniform Commercial Code in effect in the applicable
jurisdiction.
"UCC Financing Statement": A financing statement executed and filed
pursuant to the Uniform Commercial Code, as in effect in the relevant
jurisdiction.
"UCC-1", "UCC-2" and "UCC-3": UCC financing statements on Form UCC-1,
Form UCC-2 and Form UCC-3, respectively.
"Uncertificated Accrued Interest": With respect to any REMIC I Regular
Interest, for any Distribution Date, one month's interest (calculated on the
basis of a 360-day year consisting of twelve 30-day months) at the REMIC I
Remittance Rate applicable to such REMIC I Regular Interest for such
Distribution Date, accrued on the Uncertificated Principal Balance of such REMIC
I Regular Interest outstanding immediately prior to such Distribution Date. The
Uncertificated Accrued Interest in respect of any REMIC I Regular Interest for
any Distribution Date shall be deemed to have accrued during the applicable
Interest Accrual Period.
"Uncertificated Distributable Interest": With respect to any REMIC I
Regular Interest, for any Distribution Date, the Uncertificated Accrued Interest
in respect of such REMIC I Regular Interest for such Distribution Date, reduced
(to not less than zero) by the product of (i) the Net Aggregate Prepayment
Interest Shortfall, if any, for such Distribution Date, multiplied by (ii) a
fraction, the numerator of which is the Uncertificated Accrued Interest in
respect of such REMIC I Regular Interest for such Distribution Date, and the
denominator of which is the aggregate Uncertificated Accrued Interest in respect
of all the REMIC I Regular Interests for such Distribution Date.
"Uncertificated Principal Balance": With respect to any Class of REMIC
I Regular Interests (other than the Class LWAC-1 Uncertificated Interest and the
Class LWAC-2 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(c), 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
Principal Balance of the Class of Corresponding Certificates on the Distribution
Date immediately prior to such date of determination. With respect to the Class
LWAC-1 Uncertificated Interest and any Distribution Date, an amount equal to
99.99% of the aggregate Certificate Principal Balance of the Class A
Certificates 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. With respect to the Class LWAC-2
Uncertificated Interest and any Distribution Date, an amount equal to 99.99% of
the aggregate Certificate Principal Balance of the Sequential Pay Certificates,
other than the Class A Certificates, 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.
Uncertificated Principal Balances shall be expressed to five decimal places.
"United States Person": A citizen or resident of the United States, a
corporation, partnership or other entity created or organized in, or under the
laws of, the United States or any political subdivision thereof, or an estate
whose income is subject to United States federal income tax regardless of its
source, or a trust if a court within the United States is able to exercise
primary supervision over the administration of the trust and one or more United
States persons have the authority to control all substantial decisions of the
trust, all within the meaning of Section 7701(a)(30) of the Code.
"UPB-1": As defined in Section 4.01(c).
"UPB-2": As defined in Section 4.01(c).
"USPAP": The Uniform Standards of Professional Appraisal Practices.
"Voting Rights": The portion of the voting rights of all of the
Certificates which is allocated to any Certificate. At all times during the term
of this Agreement, 95.0% of the Voting Rights shall be allocated among the
Holders of the various outstanding Classes of Sequential Pay Certificates in
proportion to the respective Class Principal Balances of their Certificates, and
5.0% of the Voting Rights shall be allocated to the Holders of the Class X-1 and
X-2 Certificates in proportion to their Class Notional Amounts. 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.
"Weighted Average Adjusted Net Mortgage Rate": With respect to any
Distribution Date, the weighted average of the respective Adjusted Net Mortgage
Rates for all the Mortgage Loans and REO Loans, weighted on the basis of the
respective Stated Principal Balances of such Mortgage Loans and REO Loans
outstanding immediately prior to such Distribution Date.
"Workout Fee": With respect to each Corrected Mortgage Loan, the fee
designated as such and payable to the Special Servicer pursuant to the third
paragraph of Section 3.11(c).
"Workout Fee Rate": With respect to each Corrected Mortgage Loan as to
which a Workout Fee is payable, 1.0%.
SECTION 1.02 Certain Calculations in Respect of the Mortgage Pool.
(a) All amounts collected in respect of any Group of
Cross-Collateralized Mortgage Loans in the form of payments from Mortgagors,
Insurance Proceeds and Liquidation Proceeds, shall be applied by the Master
Servicer among such Mortgage Loans in accordance with the express provisions of
the related loan documents and, in the absence of such express provisions, on a
pro rata basis in accordance with the respective amounts then "due and owing" as
to each of the Mortgage Loans constituting such Group. All amounts collected in
respect of or allocable to any particular individual Mortgage Loan (whether or
not such Mortgage Loan is a Cross-Collateralized Mortgage Loan) in the form of
payments from Mortgagors, Liquidation Proceeds or Insurance Proceeds shall be
applied for purposes of this Agreement (including, without limitation, for
purposes of determining distributions on the Certificates pursuant to Article IV
and additional compensation payable to the Master Servicer, the Special Servicer
and any Sub-Servicers) as follows: first, as a recovery of any related
unreimbursed Servicing Advances and, if applicable, unpaid Liquidation Expenses;
second, as a recovery of accrued and unpaid interest at the related Mortgage
Rate on such Mortgage Loan to but not including, as appropriate, the date of
receipt or, in the case of a full Monthly Payment from any Mortgagor, the
related Due Date; third, as a recovery of principal of such Mortgage Loan then
due and owing, including, without limitation, by reason of acceleration of the
Mortgage Loan following a default thereunder (or, if a Liquidation Event has
occurred in respect of such Mortgage Loan, as a recovery of principal to the
extent of its entire remaining unpaid principal balance); fourth, as a recovery
of amounts to be currently applied to the payment of, or escrowed for the future
payment of, real estate taxes, assessments, insurance premiums, ground rents (if
applicable) and similar items; fifth, as a recovery of Reserve Funds to the
extent then required to be held in escrow; sixth, as a recovery of any
Prepayment Premium then due and owing under such Mortgage Loan; seventh, as a
recovery of any Default Charges then due and owing under such Mortgage Loan;
eighth, as a recovery of any assumption fees and modification fees then due and
owing under such Mortgage Loan; ninth, as a recovery of any other amounts then
due and owing under such Mortgage Loan other than remaining unpaid principal;
and tenth, as an early recovery of any remaining principal of such Mortgage Loan
to the extent of its entire remaining unpaid principal balance. The Master
Servicer shall, to the fullest extent permitted by applicable law and the
related Mortgage Loan documents, apply all payments on and proceeds of each
Mortgage Loan to amounts actually due and owing from the related Mortgagor in a
manner consistent with the foregoing and shall maintain accurate records of how
all such payments and proceeds are actually applied and are applied for purposes
of this Agreement.
(b) Collections in respect of each REO Property (exclusive of amounts
to be applied to the payment of the costs of operating, managing, maintaining
and disposing of such REO Property) shall be applied for purposes of this
Agreement (including, without limitation for purposes of determining
distributions on the Certificates pursuant to Article IV and additional
compensation payable to the Master Servicer, the Special Servicer and any
Sub-Servicers) as follows: first, as a recovery of any related unreimbursed
Servicing Advances; second, as a recovery of accrued and unpaid interest on the
related REO Loan at the related Mortgage Rate to but not including the Due Date
in the Collection Period of receipt; third, as a recovery of principal of the
related REO Loan to the extent of its entire unpaid principal balance; fourth,
as a recovery of any Prepayment Premium then due and owing under such REO Loan;
and fifth, as a recovery of any other amounts (including, without limitation,
Default Charges) deemed to be due and owing in respect of the related REO Loan.
(c) Insofar as amounts received in respect of any Mortgage Loan or REO
Property and allocable to fees and charges owing in respect of such Mortgage
Loan or the related REO Loan, as the case may be, that constitute additional
servicing compensation payable to the Master Servicer and/or Special Servicer
pursuant to Section 3.11, are insufficient to cover the full amount of such fees
and charges, such amounts shall be allocated between such of those fees and
charges as are payable to the Master Servicer, on the one hand, and such of
those fees and charges as are payable to the Special Servicer, on the other, pro
rata in accordance with their respective entitlements, and such payments so made
shall constitute the sole amount that will be paid to the Master Servicer and
the Special Servicer with respect thereto.
(d) The foregoing applications of amounts received in respect of any
Mortgage Loan or REO Property shall be determined by the Master Servicer and
reflected in the reports to be delivered thereby pursuant to Section 4.02(b).
SECTION 1.03 Relationship to Original Trust Agreement
This Agreement amends, restates and supersedes in its entirety the
Original Trust Agreement, as described in the Preliminary Statement.
<PAGE>
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS; REPRESENTATIONS AND WARRANTIES;
ORIGINAL ISSUANCE OF CERTIFICATES
SECTION 2.01 Conveyance of Mortgage Loans.
(a) It is the intention of the parties hereto that a common law trust
be established pursuant to this Agreement. Norwest Bank Minnesota, National
Association, is hereby appointed, and does hereby agree to act, as Trustee
hereunder and, in such capacity, to hold the Trust Fund in trust for the
exclusive use and benefit of all present and future Certificateholders. It is
not intended that this Agreement create a partnership or a joint-stock
association.
(b) Each of the Depositor and, at the direction of the Depositor given
pursuant to the Mortgage Loan Purchase Agreement, the Mortgage Loan Seller,
concurrently with its execution and delivery hereof, does hereby assign,
transfer, sell and otherwise convey to the Trustee without recourse for the
benefit of the Certificateholders all the right, title and interest of the
Depositor and the Mortgage Loan Seller, respectively, in, to and under the
Mortgage Loans identified on the Mortgage Loan Schedule and all other assets
included or to be included in REMIC I. Such assignment includes (i) the Mortgage
Loans as from time to time are subject to this Agreement and all payments under
and proceeds of such Mortgage Loans received or receivable after the Cut-off
Date (other than payments of principal, interest and other amounts due and
payable on the Mortgage Loans on or before the Cut-off Date), together with all
documents delivered or caused to be delivered hereunder with respect to such
Mortgage Loans by the Mortgage Loan Seller; (ii) any REO Property acquired in
respect of a Mortgage Loan; and (iii) such funds or assets as from time to time
are deposited in the Certificate Account, the Distribution Account, the REMIC II
Distribution Account and the REO Account (if established).
It is intended that the conveyance of the Mortgage Loans and the
related rights and property by the Depositor and the Mortgage Loan Seller to the
Trustee, as provided in this Section be, and be construed as, an absolute
transfer of the Mortgage Loans by the Depositor and the Mortgage Loan Seller to
the Trustee for the benefit of the Certificateholders. It is, further, not
intended that such conveyance be deemed a pledge of the Mortgage Loans by the
Depositor or the Mortgage Loan Seller to the Trustee to secure a debt or other
obligation of the Depositor or the Mortgage Loan Seller, as the case may be.
However, in the event that the Mortgage Loans are held to be property of the
Depositor or the Mortgage Loan Seller, or if for any reason this Agreement is
held or deemed to create a security interest in the Mortgage Loans, then it is
intended that, (i) this Agreement shall also be deemed to be a security
agreement within the meaning of Articles 8 and 9 of the New York Uniform
Commercial Code and the Uniform Commercial Code of any other applicable
jurisdiction; (ii) the conveyance provided for in this Section shall be deemed
to be a grant by the Depositor and the Mortgage Loan Seller to the Trustee, for
the benefit of the Certificateholders, of a security interest in all of their
respective right (including the power to convey title thereto), title and
interest, whether now owned or hereafter acquired, in and to (A) the Mortgage
Notes, the Mortgages, any related insurance policies and all other documents in
the related Mortgage Files, (B) all amounts payable to the holders of the
Mortgage Loans in accordance with the terms thereof and (C) all proceeds of the
conversion, voluntary or involuntary, of the foregoing into cash, instruments,
securities or other property, including without limitation all amounts from time
to time held or invested in the Certificate Account, the Distribution Account,
the REMIC II Distribution Account or the REO Account, whether in the form of
cash, instruments, securities or other property; (iii) the possession by the
Trustee or its agent of the Mortgage Notes and such other items of property as
constitute instruments, money, negotiable documents or chattel paper shall be
deemed to be "possession by the secured party" or possession by a purchaser or a
Person designated by such secured party, for purposes of perfecting the security
interest pursuant to the New York Uniform Commercial Code and the Uniform
Commercial Code of any other applicable jurisdiction (including, without
limitation, Section 9-305, 8-313 or 8-321 thereof); and (iv) notifications to,
and acknowledgments, receipts or confirmations from, Persons holding such
property shall be deemed to be notifications to, or acknowledgments, receipts or
confirmations from, financial intermediaries, bailees or agents (as applicable)
of the Trustee for the purpose of perfecting such security interest under
applicable law. The Depositor, the Mortgage Loan Seller and the Trustee shall,
to the extent consistent with this Agreement, take such actions as may be
necessary to ensure that, if this Agreement were deemed to create a security
interest in the Mortgage Loans, such security interest would be deemed to be a
perfected security interest of first priority under applicable law and will be
maintained as such throughout the term of this Agreement. At the Depositor's
direction, the Trustee shall execute and deliver, and the Master Servicer shall
(at its expense) file, all filings necessary to maintain the effectiveness of
any original filings necessary under the Uniform Commercial Code as in effect in
any jurisdiction to perfect and maintain the Trustee's security interest in or
lien on the Trust Fund, including without limitation (A) continuation statements
and (B) such other statements as may be occasioned by any transfer of any
interest of the Trustee, the Master Servicer, the Special Servicer or the
Depositor in the Trust Fund. In connection herewith, the Trustee shall have all
of the rights and remedies of a secured party and creditor under the Uniform
Commercial Code as in force in the relevant jurisdiction.
(c) In connection with the Mortgage Loan Seller's assignment pursuant
to subsection (b) above, the Mortgage Loan Seller shall deliver to and deposit
with, or cause to be delivered to and deposited with, the Trustee or a Custodian
appointed thereby (with a copy to the Master Servicer), on or before the Closing
Date, the Mortgage File for each Mortgage Loan so assigned by the Mortgage Loan
Seller hereunder. If the Mortgage Loan Seller is unable to deliver or cause the
delivery of any original Mortgage Note, it may deliver a copy of such Mortgage
Note, together with a lost note affidavit, and shall thereby be deemed to have
satisfied the document delivery requirements of this Section 2.01(c). If the
Mortgage Loan Seller cannot so deliver, or cause to be delivered, as to any
Mortgage Loan, the original or a copy of any of the documents and/or instruments
referred to in clauses (ii), (iv), (viii), (xi)(A) and (xii) of the definition
of "Mortgage File", with evidence of recording or filing (as the case may be)
thereon, solely because of a delay caused by the public recording or filing
office where such document or instrument has been delivered for recordation or
filing, as the case may be, the delivery requirements of this Section 2.01(c)
shall be deemed to have been satisfied as to such missing item, and such missing
item shall be deemed to have been included in the related Mortgage File,
provided that a copy of such document or instrument (without evidence of
recording or filing thereon, but certified (which certificate may relate to
multiple documents and/or instruments) by the Mortgage Loan Seller to be a true
and complete copy of the original thereof submitted for recording or filing, as
the case may be) is delivered to the Trustee or a Custodian appointed thereby on
or before the Closing Date, and either the original of such missing document or
instrument, or a copy thereof, with evidence of recording or filing, as the case
may be, thereon, is delivered to the Trustee or such Custodian within 180 days
of the Closing Date (or within such longer period after the Closing Date as the
Trustee may consent to, which consent shall not be unreasonably withheld so long
as the Mortgage Loan Seller has provided the Trustee with evidence of such
submission for recording or filing, as the case may be, or has certified to the
Trustee as to the occurrence of such submission for recording or filing, as the
case may be, and is, as certified to the Trustee no less often than monthly, in
good faith attempting to obtain from the appropriate recording or filing office
such original or copy). If the Mortgage Loan Seller cannot or does not so
deliver, or cause to be delivered, as to any Mortgage Loan, the original of any
of the documents and/or instruments referred to in clauses (iii), (v), and
(xi)(B) of the definition of "Mortgage File", because such document or
instrument has been delivered for recording or filing, as the case may be, the
delivery requirements of this Section 2.01(c) shall be deemed to have been
satisfied as to such missing item, and such missing item shall be deemed to have
been included in the related Mortgage File, provided that a copy of such
document or instrument (without evidence of recording or filing thereon, but
certified (which certificate may relate to multiple documents and/or
instruments) by the Mortgage Loan Seller to be a true and complete copy of the
original thereof submitted for recording or filing, as the case may be) is
delivered to the Trustee or a Custodian appointed thereby on or before the
Closing Date, and either the original of such missing document or instrument, or
a copy thereof, with evidence of recording or filing, as the case may be,
thereon, is delivered to the Trustee or such Custodian within 180 days of the
Closing Date (or within such longer period after the Closing Date as the Trustee
may consent to, which consent shall not be unreasonably withheld so long as the
Mortgage Loan Seller has provided the Trustee with evidence of such submission
for recording or filing, as the case may be, or has certified to the Trustee as
to the occurrence of such submission for recording or filing, as the case may
be, and is, as certified to the Trustee no less often than monthly, in good
faith attempting to obtain from the appropriate recording or filing office such
original or copy). If the Mortgage Loan Seller cannot so deliver, or cause to be
delivered, as to any Mortgage Loan, the original or a copy of the related
lender's title insurance policy referred to in clause (ix) of the definition of
"Mortgage File" solely because such policy has not yet been issued, the delivery
requirements of this Section 2.01(c) shall be deemed to be satisfied as to such
missing item, and such missing item shall be deemed to have been included in the
related Mortgage File, provided that the Mortgage Loan Seller shall have
delivered to the Trustee or a Custodian appointed thereby, on or before the
Closing Date, a commitment for title insurance "marked-up" at the closing of
such Mortgage Loan, and the Mortgage Loan Seller shall deliver to the Trustee or
such Custodian, promptly following the receipt thereof, the original related
lender's title insurance policy (or a copy thereof). In addition,
notwithstanding anything to the contrary contained herein, if there exists with
respect to any Group of related Cross-Collateralized Mortgage Loans only one
original of any document referred to in the definition of "Mortgage File"
covering all the Mortgage Loans in such Group, then the inclusion of the
original of such document in the Mortgage File for any of the Mortgage Loans in
such Group shall be deemed an inclusion of such original in the Mortgage File
for each such Mortgage Loan. None of the Trustee, any Custodian, the Depositor,
the Master Servicer or the Special Servicer shall in any way be liable for any
failure by the Mortgage Loan Seller to comply with the delivery requirements of
this Section 2.01(c).
If any of the endorsements referred to in clause (i) of the definition
of "Mortgage File", any of the assignments of Mortgage referred to in clause
(iii) of the definition of "Mortgage File", any of the assignments of Assignment
of Leases referred to in clause (v) of the definition of "Mortgage File", or any
of the assignments of Security Agreement referred to in clause (vii) of the
definition of "Mortgage File" are delivered to the Trustee in blank, the Trustee
shall (without being obligated to record or file such) be responsible for
completing the related endorsement or assignment in the name of the Trustee (in
such capacity).
(d) The Mortgage Loan Seller shall, as to each Mortgage Loan, at its
own expense, promptly (and in any event within 45 days of the Closing Date)
submit or cause to be submitted for recording or filing, as the case may be, in
the appropriate public office for real property records or UCC Financing
Statements, as appropriate, each assignment referred to in clauses (iii) and (v)
of the definition of "Mortgage File" and each UCC-1, UCC-2 and UCC-3, if any,
referred to in clause (xi)(B) of the definition of "Mortgage File". Each such
assignment shall reflect that it should be returned by the public recording
office to the Trustee following recording, and each such UCC-1, UCC-2 and UCC-3
shall reflect that the file copy thereof should be returned to the Trustee
following filing. At such time as such assignments, UCC-1s, UCC-2s and UCC-3s
have been returned to the Trustee, the Trustee shall promptly forward a copy of
each thereof to the Master Servicer. If any such document or instrument is lost
or returned unrecorded or unfiled, as the case may be, because of a defect
therein, the Mortgage Loan Seller shall promptly prepare or cause the
preparation of a substitute therefor or cure or cause the curing of such defect,
as the case may be, and thereafter the Mortgage Loan Seller, shall, at its own
expense, submit the substitute or corrected documents or cause such to be
submitted for recording or filing, as appropriate.
(e) All documents and records in the Mortgage Loan Seller's possession
(or under its control) relating to the Mortgage Loans that are not required to
be a part of a Mortgage File in accordance with the definition thereof, together
with all Escrow Payments and Reserve Funds in the possession of the Mortgage
Loan Seller (or under its control) with respect to the Mortgage Loans, shall be
delivered or caused to be delivered by the Mortgage Loan Seller to the Master
Servicer, within 10 days of the Closing Date, and shall be retained by the
Master Servicer on behalf of the Trustee in trust for the benefit of the
Certificateholders.
(f) The Mortgage Loan Seller shall, as to each Mortgage Loan which is
secured by the interest of the related Mortgagor under a Ground Lease, at its
own expense, promptly (and in any event within 45 days of the Closing Date)
notify the related ground lessor of the transfer of such Mortgage Loan to the
Trust pursuant to this Agreement and inform such ground lessor that any notices
of default under the related Ground Lease should thereafter be forwarded to the
Trustee.
SECTION 2.02 Acceptance of REMIC I by Trustee.
(a) The Trustee, by the execution and delivery of this Agreement,
acknowledges receipt by it or a Custodian on its behalf, subject to any
exceptions noted on the Schedule of Exceptions to Mortgage File Delivery
attached hereto as Schedule V, to the provisions of Section 2.01 and to the
further review provided for in this Section 2.02, of, with respect to each
Mortgage Loan, an original Mortgage Note endorsed to the Trustee, an original or
a copy of the Mortgage (with evidence of recording thereon), and an original
assignment of such Mortgage executed in favor of the Trustee (in such capacity)
and of all other assets included in REMIC I, in good faith and without notice of
any adverse claim, and declares that it or a Custodian on its behalf holds and
will hold the documents delivered or caused to be delivered by the Mortgage Loan
Seller in respect of the Mortgage Loans, and that it holds and will hold such
other assets included in REMIC I, in trust for the exclusive use and benefit of
all present and future Certificateholders.
(b) Within 60 days of the Closing Date (or, in the case of any Mortgage
Loan as to which a Servicing Transfer Event has occurred during such 60-day
period of which event the Trustee has notice, within the shorter of 60 days of
the Closing Date and five Business Days of the Trustee's receiving such notice),
the Trustee or a Custodian on its behalf shall review each of the documents
delivered or caused to be delivered by the Mortgage Loan Seller with respect to
each Mortgage Loan pursuant to Section 2.01(c); and, promptly following such
review, the Trustee shall, subject to Section 2.02(d), certify in writing to
each of the Depositor, the Master Servicer, the Special Servicer and the
Mortgage Loan Seller that as to each Mortgage Loan listed in the Mortgage Loan
Schedule (other than any Mortgage Loan paid in full), and except as specifically
identified in any exception report annexed to such certification, (i) all
documents specified in clauses (i) through (iii), (ix) and, if the Mortgage Loan
Schedule specifies that the related Mortgagor has a leasehold interest in the
related Mortgaged Property, (xiii) of the definition of "Mortgage File" are in
its possession or the possession of a Custodian on its behalf, or the Mortgage
Loan Seller has otherwise satisfied the delivery requirements in respect of such
documents in accordance with Section 2.01(c), (ii) all documents received by it
or any Custodian in respect of such Mortgage Loan have been reviewed by it or by
a Custodian on its behalf and appear regular on their face and relate to such
Mortgage Loan, and (iii) based on such examination and only as to the foregoing
documents, the information set forth in the Mortgage Loan Schedule with respect
to the items specified in clauses (ii), (iii), (iv) and (vi)(B) of the
definition of "Mortgage Loan Schedule" is correct.
(c) The Trustee or a Custodian on its behalf shall review each of the
documents relating to the Mortgage Loans received thereby subsequent to the
Closing Date; and, on or about the first anniversary of the Closing Date, the
Trustee shall, subject to Section 2.02(d), certify in writing to each of the
Depositor, the Master Servicer, the Special Servicer and, the Mortgage Loan
Seller that as to each Mortgage Loan listed on the Mortgage Loan Schedule (other
than any Mortgage Loan paid in full or otherwise liquidated), and except as
specifically identified in any exception report annexed to such certification,
(i) all documents specified in clauses (i), (ii), (ix) and, if the Mortgage Loan
Schedule specifies that the related Mortgagor has a leasehold interest in the
related Mortgaged Property, (xiii) of the definition of "Mortgage File" are in
its possession or the possession of a Custodian on its behalf, or the Mortgage
Loan Seller has otherwise satisfied the delivery requirements in respect of such
documents in accordance with Section 2.01(c), (ii) it or a Custodian on its
behalf has received either the original or copy of each of the assignments
specified in clauses (iii) and (v) of the definition of "Mortgage File" that
were delivered by the Mortgage Loan Seller with evidence of recording thereon,
(iii) all documents received by it or any Custodian in respect of such Mortgage
Loan have been reviewed by it or by such Custodian on its behalf and appear
regular on their face and relate to such Mortgage Loan, and (iv) based on the
examinations referred to in subsection (b) above and this subsection (c) and
only as to the foregoing documents, the information set forth in the Mortgage
Loan Schedule with respect to the items specified in clauses (ii), (iii), (iv)
and (vi)(B) of the definition of "Mortgage Loan Schedule", is correct.
(d) It is herein acknowledged that, notwithstanding any other provision
hereof, neither the Trustee nor any Custodian is under any duty or obligation
(i) to determine whether any of the documents specified in clauses (iv) through
(viii), (x) through (xii) and (xiv) through (xx) of the definition of "Mortgage
File" exist or are required to be delivered by the Mortgage Loan Seller in
respect of any Mortgage Loan or (ii) to inspect, review or examine any of the
documents, instruments, certificates or other papers relating to the Mortgage
Loans delivered to it to determine that the same are genuine, enforceable, in
recordable form or appropriate for the represented purpose, or that they are
other than what they purport to be on their face.
(e) If, in the process of reviewing the documents delivered or caused
to be delivered by the Mortgage Loan Seller pursuant to Section 2.01(c), the
Trustee or any Custodian discovers that any document required to have been
delivered pursuant to Section 2.01(c) has not been so delivered, or discovers
that any of the documents that were delivered has not been properly executed,
contains information that does not conform in any material respect with the
corresponding information set forth in the Mortgage Loan Schedule, or is
defective on its face (each, including, without limitation, that a document is
missing, a "Document Defect"), or if, at any other time, the Trustee or any
other party hereto discovers a Document Defect in respect of any Mortgage Loan,
the party discovering such Document Defect shall promptly so notify each of the
other parties hereto. If and when such party is notified of or discovers any
error in the Mortgage Loan Schedule, the Mortgage Loan Seller shall promptly
correct such error and distribute a new, corrected Mortgage Loan Schedule to
each of the other parties hereto. Such new, corrected Mortgage Loan Schedule
shall be deemed to amend and replace the existing Mortgage Loan Schedule.
SECTION 2.03 Mortgage Loan Seller's Repurchase of Mortgage Loans
for Document Defects and Certain Breaches of
Representations and Warranties.
(a) Within 120 days of the earlier of discovery or receipt of notice by
the Mortgage Loan Seller, of a Document Defect in respect of any Mortgage Loan
or a breach of any representation or warranty set forth in Section 2.05(b) in
respect of any Mortgage Loan, which Document Defect or breach, as the case may
be, materially and adversely affects the value of such Mortgage Loan or the
interests of the Certificateholders therein, the Mortgage Loan Seller shall cure
such Document Defect or breach, as the case may be, in all material respects or
repurchase (or, cause an Affiliate to purchase) the affected Mortgage Loan at
the applicable Purchase Price by deposit of such Purchase Price into the
Certificate Account and delivery to the Trustee of a written certification that
such deposit has been made. Notwithstanding the immediately preceding sentence,
within 90 days of the earlier of discovery or receipt of notice by the Mortgage
Loan Seller that there is a breach of the representation and warranty set forth
in Section 2.05(b)(xxxi) (i.e., that any Mortgage Loan does not constitute a
"qualified mortgage" within the meaning of Section 860G(a)(3) of the Code), the
Mortgage Loan Seller shall repurchase such Mortgage Loan at the applicable
Purchase Price by deposit of such Purchase Price into the Certificate Account
and delivery to the Trustee of a written certification that such deposit has
been made.
(b) In connection with any repurchase of a Mortgage Loan contemplated
by this Section 2.03, the Trustee, the Master Servicer and the Special Servicer
shall each tender or cause to be tendered to the Mortgage Loan Seller, upon
delivery to each of the Trustee, the Master Servicer and the Special Servicer of
a receipt executed by the Mortgage Loan Seller, all portions of the Mortgage
File and other documents and funds pertaining to such Mortgage Loan possessed by
it (or any Custodian or Sub-Servicer on its behalf), and each document that
constitutes a part of the Mortgage File that was endorsed or assigned to the
Trustee shall be endorsed or assigned, as the case may be, to or at the
direction of the Mortgage Loan Seller, in the same manner. The form, sufficiency
and expense of all such instruments and certificates shall be the responsibility
of the Mortgage Loan Seller.
(c) This Section 2.03 provides the sole remedies available to the
Certificateholders, or to the Trustee on behalf of the Certificateholders,
respecting any Document Defect or any breach of any representation or warranty
set forth in Section 2.05(b) hereof. If the Mortgage Loan Seller defaults on its
obligations to repurchase any Mortgage Loan in accordance with Section 2.03(a)
hereof, or disputes its obligation to repurchase any Mortgage Loan in accordance
with any such provision, the Trustee shall promptly notify the
Certificateholders and, subject to Sections 8.01 and 8.02 and its right to
reimbursement pursuant to Section 8.05(b), shall take such action as may be
appropriate to enforce such payment or performance, including, without
limitation, the institution and prosecution of appropriate proceedings. If it is
judicially determined or subsequently agreed that the Mortgage Loan Seller is
required to repurchase such Mortgage Loan under Section 2.03(a) or 2.03(b)
hereof, the Mortgage Loan Seller shall reimburse the Trustee for all necessary
and reasonable costs and expenses incurred in connection with such enforcement,
and otherwise the Trustee's right of reimbursement shall be limited to amounts
on deposit in the Distribution Account from time to time in accordance with
Section 8.05(b) and to such other sources of security and indemnity as shall
have been offered to the Trustee by the Certificateholders.
SECTION 2.04 Representations and Warranties of the Depositor.
(a) The Depositor hereby represents and warrants to each of the other
parties to this Agreement and for the benefit of the Certificateholders, as of
the Closing Date, that:
(i) The Depositor is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware.
(ii) The execution and delivery of this Agreement by the
Depositor, and the performance and compliance with the terms of this
Agreement by the Depositor, will not violate the Depositor's
certificate of incorporation or bylaws or constitute a default (or an
event which, with notice or lapse of time, or both, would constitute a
default) under, or result in the breach of, any material agreement or
other instrument to which it is a party or which is applicable to it or
any of its assets.
(iii) The Depositor has the full power and authority to enter
into and consummate all transactions contemplated by this Agreement,
has duly authorized the execution, delivery and performance of this
Agreement, and has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by each of the other parties hereto, constitutes a valid,
legal and binding obligation of the Depositor, enforceable against the
Depositor in accordance with the terms hereof, subject to (A)
applicable bankruptcy, insolvency, reorganization, moratorium and other
laws affecting the enforcement of creditors' rights generally, and (B)
general principles of equity, regardless of whether such enforcement is
considered in a proceeding in equity or at law.
(v) The Depositor is not in violation of, and its execution
and delivery of this Agreement and its performance and compliance with
the terms of this Agreement will not constitute a violation of, any
law, any order or decree of any court or arbiter, or any order,
regulation or demand of any federal, state or local governmental or
regulatory authority, which violation, in the Depositor's good faith
and reasonable judgment, is likely to affect materially and adversely
either the ability of the Depositor to perform its obligations under
this Agreement or the financial condition of the Depositor.
(vi) The transfer of the Mortgage Loans to the Trustee as
contemplated herein requires no regulatory approval, other than any
such approvals as have been obtained, and is not subject to any bulk
transfer or similar law in effect in any applicable jurisdiction.
(vii) No litigation is pending or, to the best of the
Depositor's knowledge, threatened against the Depositor which would
prohibit the Depositor from entering into this Agreement or, in the
Depositor's good faith and reasonable judgment, is likely to materially
and adversely affect either the ability of the Depositor to perform its
obligations under this Agreement or the financial condition of the
Depositor.
(b) Upon discovery by any of the parties hereto of a breach of any of
the foregoing representations and warranties which materially and adversely
affects the interests of the Certificateholders or any party hereto, the party
discovering such breach shall give prompt written notice to each of the other
parties hereto.
SECTION 2.05 Representations and Warranties of the Mortgage Loan
Seller.
(a) The Mortgage Loan Seller hereby represents and warrants to the
other parties hereto and for the benefit of the Certificateholders, as of the
Closing Date, that:
(i) The Mortgage Loan Seller is a 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
Mortgage Loan Seller, and the performance and compliance with the terms
of this Agreement by the Mortgage Loan Seller, will not violate the
Mortgage Loan Seller's organizational documents or constitute a default
(or an event which, with notice or lapse of time, or both, would
constitute a default) under, or result in the breach of, any material
agreement or other instrument to which it is a party or which is
applicable to it or any of its assets.
(iii) The Mortgage Loan Seller has the full power and
authority to enter into and consummate all transactions contemplated by
this Agreement, has duly authorized the execution, delivery and
performance of this Agreement, and has duly executed and delivered this
Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by each of the other parties hereto, constitutes a valid,
legal and binding obligation of the Mortgage Loan Seller, enforceable
against the Mortgage Loan Seller in accordance with the terms hereof,
subject to (A) applicable bankruptcy, insolvency, reorganization,
moratorium and other laws affecting the enforcement of creditors'
rights generally, and (B) general principles of equity, regardless of
whether such enforcement is considered in a proceeding in equity or at
law.
(v) The Mortgage Loan Seller is not in violation of, and its
execution and delivery of this Agreement and its performance and
compliance with the terms of this Agreement will not constitute a
violation of, any law, any order or decree of any court or arbiter, or
any order, regulation or demand of any federal, state or local
governmental or regulatory authority, which violation, in the Mortgage
Loan Seller's good faith and reasonable judgment, is likely to affect
materially and adversely either the ability of the Mortgage Loan Seller
to perform its obligations under this Agreement or the financial
condition of the Mortgage Loan Seller.
(vi) No litigation is pending or, to the best of the Mortgage
Loan Seller's knowledge, threatened against the Mortgage Loan Seller
which would prohibit the Mortgage Loan Seller from entering into this
Agreement or, in the Mortgage Loan Seller's good faith and reasonable
judgment, is likely to materially and adversely affect either the
ability of the Mortgage Loan Seller to perform its obligations under
this Agreement or the financial condition of the Mortgage Loan Seller.
(b) The Mortgage Loan Seller hereby represents and warrants with
respect to (but solely with respect to) each Mortgage Loan, to the other parties
hereto and for the benefit of the Certificateholders, as of the date hereinbelow
specified or, if no such date is specified, as of the Closing Date, that:
(i) Immediately prior to the transfer thereof by the Mortgage
Loan Seller to the Trustee, the Mortgage Loan Seller had good and
marketable title to, and was the sole owner and holder of, such
Mortgage Loan, free and clear of any and all liens, encumbrances and
other interests on, in or to such Mortgage Loan (other than, in certain
cases, the right of a sub-servicer to primary service such Mortgage
Loan subject to Section 3.22 hereof).
(ii) The Mortgage Loan Seller had full right and authority to
sell, assign and transfer such Mortgage Loan to or the Trustee.
(iii) The information pertaining to such Mortgage Loan set forth
in the Mortgage Loan Schedule was true and correct in all material
respects as of the Cut-off Date.
(iv) Such Mortgage Loan was not, as of the Cut-off Date or at any
time during the twelve-month period prior thereto, 30 days or more
delinquent in respect of any Monthly Payment of principal and/or
interest required thereunder, without giving effect to any applicable
grace period.
(v) Each Mortgage securing such Mortgage Loan constitutes a valid
first lien upon the related Mortgaged Property, including, without
limitation, all buildings located thereon and all fixtures attached
thereto, subject only to (and such Mortgaged Property is free and clear
of all encumbrances and liens having priority over the lien of such
Mortgage, except for) (A) the lien of current real property taxes and
assessments not yet due and payable, (B) covenants, conditions and
restrictions, rights of way, easements and other matters of public
record, (C) the right of tenants (whether under ground leases, space
leases or operating leases) at the Mortgaged Property to remain
following a foreclosure or similar proceeding (provided that such
tenants are performing under such leases), (D) exceptions and
exclusions specifically referred to in the lender's title insurance
policy issued or, as evidenced by a "marked-up" commitment, to be
issued in respect of such Mortgage Loan and (E) if such Mortgage Loan
is cross-collateralized with any other Mortgage Loan, the lien of the
Mortgage for such other Mortgage Loan (the exceptions set forth in the
foregoing clauses (A), (B), (C), (D), and (E), collectively, "Permitted
Encumbrances"). Such Permitted Encumbrances do not materially interfere
with the security intended to be provided by the related Mortgage(s),
the current use of the related Mortgaged Property, or the current
ability of such Mortgaged Property to generate net operating income
sufficient to service the Mortgage Loan.
(vi) The lien of each related Mortgage is insured by an ALTA
lender's title insurance policy, or its equivalent as adopted in the
applicable jurisdiction, issued by a nationally recognized title
insurance company, insuring the originator of the related Mortgage
Loan, its successors and assigns, as to the first priority lien of the
Mortgage in the original principal amount of the related Mortgage Loan
after all advances of principal, subject only to Permitted Encumbrances
(or, if a title insurance policy has not yet been issued in respect of
any Mortgage Loan, a policy meeting the foregoing description is
evidenced by a commitment for title insurance "marked-up" at the
closing of such loan).
(vii) The Mortgage Loan Seller has not waived any material
default, breach, violation or event of acceleration existing under the
related Mortgage or Mortgage Note.
(viii) There is no valid offset, defense or counterclaim to such
Mortgage Loan.
(ix) The Mortgage Loan Seller has not received actual notice (A)
that there is any proceeding pending or threatened for the total or
partial condemnation of the related Mortgaged Property or (B) that
there is any material damage at the related Mortgaged Property that
materially and adversely affects the value of such Mortgaged Property.
(x) At origination, such Mortgage Loan complied in all material
respects with all requirements of federal, state and local laws,
including, without limitation, laws pertaining to usury, relating to
the origination of such Mortgage Loan.
(xi) The proceeds of such Mortgage Loan have been fully
disbursed, and there is no requirement for future advances thereunder.
(xii) The Mortgage Note and Mortgage(s) for such Mortgage Loan
and all other documents and instruments evidencing, guaranteeing,
insuring or otherwise securing such Mortgage Loan are each the legal,
valid and binding obligation of the maker thereof (subject to any
non-recourse provisions contained in any of the foregoing agreements
and any applicable state anti-deficiency legislation), enforceable in
accordance with their respective terms, except as such enforcement may
be limited by bankruptcy, insolvency, reorganization, receivership,
moratorium or other laws relating to or affecting the rights of
creditors generally and by general principles of equity (regardless of
whether such enforcement is considered in a proceeding in equity or at
law).
(xiii) Except for the Mortgage Loan relating to the Mortgaged
Property identified on the Mortgage Loan Schedule as "The Gauntlet at
Curtis Park" (a golf course), the related Mortgaged Property is: (A) if
a commercial property, insured by a fire and extended perils insurance
policy, issued by an insurer meeting the requirements of such Mortgage
Loan in an amount not less than the greater of (1) the replacement cost
and (2) the amount necessary to avoid the operation of any co-insurance
provisions with respect to such Mortgaged Property, and is also covered
(except if such Mortgaged Property is operated as a mobile home park),
by rental insurance in an amount equal to the gross rentals for at
least a 12-month period (or, in the case of a Mortgaged Property not
having an elevator, for at least a 6-month period) and broad form
boiler and machinery insurance; such insurance policy provides that it
shall not be canceled, endorsed, altered or reissued to effect a change
in coverage unless such insurer shall have first given the mortgagee
under such Mortgage Loan thirty days prior written notice, and no
notice has been received as of the date hereof; all premiums required
to be paid on such policy have been paid; the related Mortgage
obligates the Mortgagor to maintain all such insurance and, at the
Mortgagor's failure to do so, authorizes the mortgagee under such
Mortgage Loan to purchase such insurance at the Mortgagor's cost and
expense and to seek reimbursement from such Mortgagor; and (B) if a
multifamily property, insured by a fire and extended perils insurance
policy, issued by an insurer meeting the requirements of such Mortgage
Loan and covering rent loss and such other hazards, casualties,
liabilities and contingencies the Master Servicer shall require and in
such amounts and for such periods as the Master Servicer shall require;
at least thirty days prior to the expiration date of such policy, the
related Mortgage requires the Mortgagor to deliver to the mortgagee
under such Mortgage Loan a renewal policy in form satisfactory to the
Master Servicer; all premiums required to be paid on such policy have
been paid; the Mortgage obligates the related Mortgagor to maintain all
such insurance and, upon such Mortgagor's failure to do so, authorizes
the mortgagee to purchase such insurance at the Mortgagor's cost and
expense and to seek reimbursement from such Mortgagor. In addition, if
the related Mortgaged Property is located in a federally designated
special flood hazard area, the related Mortgagor is required to
maintain flood insurance in respect thereof (exclusive of any parking
lot or unused or undeveloped portion thereof).
(xiv) In connection with or subsequent to the origination of such
Mortgage Loan, one or more Phase I Environmental Assessments (or an
update of a previously conducted assessment) were performed with
respect to the related Mortgaged Property, and the Mortgage Loan
Seller, having made no independent inquiry other than reviewing the
resulting report(s) and/or employing an environmental consultant to
perform the assessment(s) referenced herein, has no knowledge of any
material and adverse environmental condition or circumstance affecting
such Mortgaged Property that was not disclosed in the related
report(s). Where such assessments disclosed the existence of such a
material condition or circumstance affecting a Mortgaged Property and
recommended that action be taken, (i) a party not related to the
related Mortgagor was identified as the responsible party for such
condition or circumstance, or (ii) the related Mortgagor was required
to obtain an operations and maintenance plan, or (iii) funds sufficient
to effect such action were escrowed, in each case consistent with any
such recommendation and in accordance with the Mortgage Loan Seller's
underwriting standards.
(xv) Except as indicated on the Mortgage Loan Schedule, such
Mortgage Loan is not cross-collateralized with other Mortgage Loans in
the Mortgage Pool. Such Mortgage Loan is not cross-collateralized with
a mortgage loan outside the Mortgage Pool.
(xvi) Except as indicated on Schedule III hereto or as contained
in the related Mortgage File, the terms of the Mortgage Note and
Mortgage(s) for such Mortgage Loan have not been impaired, waived,
altered or modified in any material respect.
(xvii) There are no delinquent taxes, ground rents, insurance
premiums, assessments, including, without limitation, assessments
payable in future installments, or other similar outstanding charges
(and, to the actual knowledge of the Mortgage Loan Seller, at
origination of such Mortgage Loan, there were no delinquent water
charges or sewer rents) affecting the related Mortgaged Property.
(xviii) The interest of the Mortgagor in the related Mortgaged
Property consists of a fee simple and/or leasehold interest in real
property.
(xix) Such Mortgage Loan is a whole loan and not a participation
interest.
(xx) The assignment of the related Mortgage to the Trustee
constitutes the legal, valid and binding assignment of such Mortgage
from the relevant assignor to the Trustee, and the assignment of the
related Assignment of Leases, if any, or of any other agreement
executed in connection with such Mortgage Loan to the Trustee
constitutes the legal, valid and binding assignment thereof from the
relevant assignor to the Trustee.
(xxi) All escrow deposits (including capital improvements and
environmental remediation reserves) relating to such Mortgage Loan that
were required to be delivered to the mortgagee under the terms of the
related loan documents, have been received and, to the extent of any
remaining balances of such escrow deposits, are in the possession, or
under the control of the Mortgage Loan Seller or its agents (which
shall include the Master Servicer).
(xxii) As of the date of origination of such Mortgage Loan and as
of the Closing Date, the related Mortgaged Property was and is free and
clear of any mechanics' and materialmen's liens or liens in the nature
thereof which create a lien prior to that created by the related
Mortgage(s).
(xxiii) No improvement that was included for the purpose of
determining the appraised value of the related Mortgaged Property at
the time of origination of such Mortgage Loan lies outside the
boundaries and building restriction lines of such property to any
material extent, and no improvements on adjoining properties materially
encroach upon such Mortgaged Property to any material extent, and no
improvement located on or forming part of such Mortgaged Property is in
material violation of any applicable zoning laws or ordinances (except
to the extent that they may constitute legal non-conforming uses).
(xxiv) To the extent required under applicable law as of the
Closing Date and necessary for the enforceability or collectability of
the Mortgage Loan, the originator of such Mortgage Loan was authorized
to do business in the jurisdiction in which the related Mortgaged
Property is located at all times when it held the Mortgage Loan.
(xxv) There is no material default, breach or event of
acceleration existing under the related Mortgage or Mortgage Note, and
the Mortgage Loan Seller has not received actual notice of any event
(other than payments due but not yet delinquent) that, with the passage
of time or with notice and the expiration of any grace or cure period,
would constitute such a material default, breach or event of
acceleration; provided, however, that this representation and warranty
does not cover any default, breach or event of acceleration that
specifically pertains to any matter otherwise covered by any other
representation and warranty made by the Mortgage Loan Seller in any of
paragraphs (iv), (xiv), (xvii), (xxi), (xxiii) and (xxix) of this
Section 2.05(c).
(xxvi) If such Mortgage Loan is secured in whole or in part by
the interest of a Mortgagor under a Ground Lease and by the related fee
interest, such fee interest is subordinate to the related Mortgage and
the related Mortgage does not by its terms provide that it will be
subordinated to the lien of any mortgage or any other lien upon such
fee interest.
(xxvii) Such Mortgage Loan does not contain any equity
participation by the lender, provide for any contingent or additional
interest in the form of participation in the cash flow of the related
Mortgaged Property or provide for the negative amortization of
interest, except that, as identified on the Mortgage Loan Schedule,
such Mortgage Loan may provide that during the period commencing on a
specified date and continuing until such Mortgage Loan is paid in full,
additional interest will accrue (and may be compounded) on such
Mortgage Loan and shall be payable only after the outstanding principal
of the Mortgage Loan is paid in full.
(xxviii) No holder of such Mortgage Loan has, to the Mortgage
Loan Seller's knowledge, advanced funds or induced, solicited or
knowingly received any advance of funds from a party other than the
owner of the related Mortgaged Property, directly or indirectly, for
the payment of any amount required by the Mortgage Loan.
(xxix) To the Mortgage Loan Seller's knowledge, based on due
diligence customarily performed in the origination of comparable
mortgage loans, as of the date of origination of such Mortgage Loan,
(A) the related Mortgagor was in possession of all material licenses,
permits and authorizations required by applicable laws for the
ownership and operation of the related Mortgaged Property as it was
then operated and (B) all such licenses, permits and authorizations
were valid and in full force and effect.
(xxx) The related Mortgage(s) or Mortgage Note, together with
applicable state law, contains customary and enforceable provisions
(subject to the exceptions set forth in clauses (c)(v) and (c)(xii)
above) such as to render the rights and remedies of the holders thereof
adequate for the practical realization against the related Mortgaged
Property of the principal benefits of the security intended to be
provided thereby.
(xxxi) Such Mortgage Loan is a "qualified mortgage" within the
meaning of Section 860G(a)(3) of the Code.
(xxxii) If such Mortgage Loan is secured by a mortgage lien on
the applicable Mortgagor's leasehold interest in the related Mortgaged
Property, but not a mortgage lien on the related fee interest, then
except with respect to the Mortgage Loan secured by the Mortgaged
Property identified on the Mortgage Loan Schedule as the "Landings &
Marina" (as to which the related lessor is the State of Florida),
either (A) the related ground lessor has subordinated its interest in
the related Mortgaged Property to the interest of the holder of the
Mortgage Loan or (B) the related ground lessor has granted the holder
of the Mortgage Loan the right to notice and an opportunity to cure any
default or breach by the lessee. Upon the foreclosure of such Mortgage
Loan (or acceptance of a deed in lieu thereof), the related Ground
Lease is assignable to the mortgagee under the leasehold estate and its
assigns without the consent of the ground lessor thereunder.
(xxxiii) No fraud with respect to such Mortgage Loan has taken
place on the part of the Mortgage Loan Seller in connection with the
origination of such Mortgage Loan.
(xxxiv) The terms of such Mortgage Loan provide or, at lender's
option, permit, and the terms of this Agreement and any Sub-Servicing
Agreement to which such Mortgage Loan is subject provide for purposes
of calculating distributions on the Certificates and additional
compensation payable to the Master Servicer, the Special Servicer and
any related Sub-Servicer, that payments on and proceeds of such
Mortgage Loan will be applied to principal and interest at the related
Mortgage Rate due and owing at the time such payments or proceeds are
received, prior to being applied to any Default Charges, assumption
fees and modification fees then due and owing.
(xxxv) If such Mortgage Loan is, as of the Closing Date, subject
to a Sub-Servicing Agreement, such Sub-Servicing Agreement provides
that the related Sub-Servicer is not to receive any sub-servicing
compensation with respect to such Mortgage Loan during any period that
such Mortgage Loan is a Specially Serviced Mortgage Loan or an REO Loan
(except for any Termination Strip payable to a Sub-Servicer in
connection with a termination thereof without cause as contemplated by
Section 3.22(d) hereof).
(xxxvi) The servicing and collection practices used with respect
to such Mortgage Loan have been in all material respects legal and
prudent and have met customary standards utilized by prudent
institutional multifamily and commercial mortgage loan servicers.
(xxxvii) Unless the related Mortgaged Property is owner occupied,
the Mortgage File for such Mortgage Loan contains an Assignment of
Leases either as a separate instrument or incorporated into the related
Mortgage, which creates, in favor of the holder, a valid, perfected and
enforceable lien of the same priority as the related Mortgage, in the
property and rights described therein; provided that the enforceability
of such lien is subject to applicable bankruptcy, insolvency,
reorganization, moratorium, and other laws affecting the enforcement of
creditors' rights generally, and by the application of the rules of
equity. The Mortgage Loan Seller has the full right to assign to the
Trustee such Assignment of Leases and the lien created thereby as
described in the immediately preceding sentence. No Person other than
the Mortgagor owns any interest in any payments due under the related
leases.
(xxxviii) If the related Mortgaged Property securing such
Mortgage Loan is encumbered by secured subordinated debt, then, except
for the Mortgage Loan relating to the Mortgaged Property identified on
the Mortgage Loan Schedule as the "Baltic Inn," either (A) the
subordinate debt constitutes a "cash flow" mortgage loan (that is,
payments are required to be made thereon only to the extent that
certain net cash flow from the related Mortgaged Property (calculated
in accordance with the related loan documents) is sufficient after
payments on such Mortgage Loan have been made and certain expenses have
been paid) or (B) the holder of the subordinate debt has agreed not to
foreclose on the related Mortgaged Property so long as such Mortgage
Loan is outstanding and the Special Servicer on behalf of the Trust is
not pursuing a foreclosure action.
(xxxix) Except with respect to the Ground Lease constituting a
portion of the Mortgaged Property identified as the "Landings & Marina"
on the Mortgage Loan Schedule, if such Mortgage Loan is secured by a
mortgage lien on the applicable Mortgagor's leasehold interest under a
Ground Lease, such Ground Lease has an original term (or an original
term plus one or more optional renewal terms, which, under all
circumstances, may be exercised, and will be enforceable, by the
mortgagee if it takes possession of such leasehold interest) that
extends not less than 10 years beyond the stated maturity of the
related Mortgage Loan. With respect to the Landings & Marina Mortgaged
Property, the related Ground Lease is a submerged lands lease
incidental to the core property (an apartment complex), and the
loan-to-value ratio with respect to the related Mortgage Loan and such
Mortgaged Property would be 100% or less if the property subject to
such Ground Lease were not part of the Mortgaged Property.
(xl) In the event fraud was committed by the Mortgagor in
connection with the origination thereof, such Mortgage Loan becomes a
recourse obligation of the Mortgagor.
(xli) At origination of such Mortgage Loan, the related Mortgagor
was not, to the best of the Mortgage Loan Seller's actual knowledge, a
debtor in any state or federal bankruptcy or insolvency proceeding.
(xlii) If such Mortgage Loan is secured by the interest of the
related Mortgagor under a Ground Lease, then, as of the origination of
such Mortgage Loan, such Ground Lease was in full force and effect and,
to the Mortgage Loan Seller's actual knowledge, no material default
existed under such Ground Lease.
(xliii) The Mortgage Loan Seller has no actual knowledge of any
pending litigation or other legal proceedings involving the related
Mortgagor or the related Mortgaged Property that can reasonably be
expected to materially interfere with the security intended to be
provided by the related Mortgage, the current use of the related
Mortgaged Property, or the current ability of the Mortgaged Property to
generate net operating income sufficient to service the Mortgage Loan.
(xliv) If such Mortgage Loan had a Cut-off Date Balance greater
than 1% of the Initial Pool Balance, then, except in the case of the
Mortgage Loan relating to the Mortgaged Property identified on the
Mortgage Loan Schedule as "Trinity Towers Apartments" (as to which the
related borrowers are individuals), the related Mortgagor has
covenanted in its organizational documents and/or the Mortgage Loan
documents to own no significant asset other than the related Mortgaged
Property, Mortgaged Properties securing other Mortgage Loans and assets
incidental to its ownership and operation of such Mortgaged Property or
Properties.
(xlv) Neither the related Mortgage Note nor the related Mortgage
requires the mortgagee to release all or any material portion of the
related Mortgaged Property from the lien of the related Mortgage except
upon payment in full of all amounts due under the related Mortgage
Loan.
(xlvi) Except as identified on Schedule IV hereto, such Mortgage
Loan does not permit the related Mortgaged Property to be encumbered
subsequent to the Closing Date by any lien junior to or of equal
priority with the lien of the related Mortgage without the prior
written consent of the holder thereof.
(xlvii) With respect to each Mortgage Loan as to which the
related Mortgaged Property is operated as a nursing home or congregate
care facility:
(A) To the best of the Mortgage Loan Seller's knowledge
(based on due diligence customarily performed by
prudent mortgage lenders), as of the Cut-Off Date, the
healthcare facility located on the related Mortgaged
Property and the operator with respect to such facility
had all certificates, licenses and permits required by
applicable law for the operation of such facility or,
to the extent such facility participates in Medicaid,
Medicare or other similar programs, such facility and
operator holds a valid certification for such
participation, appropriate for the level of care
provided at such facility.
(B) To the best of the Mortgage Loan Seller's knowledge
(based on due diligence customarily performed by
prudent mortgage lenders), as of the Cut-Off Date, the
related borrower or operator, as the case may be, with
respect to the related Mortgaged Property or its
operation of the related Mortgaged Property, was in
compliance in all material respects with all applicable
laws, regulations, quality and safety standards and
requirements of the applicable state department of
health, and the other related Mortgage Loan documents
require that so long as the related Mortgage Loan
remains outstanding the related Mortgaged Property
shall be operated in compliance in all material
respects with such applicable laws and requirements.
(C) The related Mortgage Loan documents provide that (1) so
long as the related Mortgage Loan remains outstanding,
the related Mortgaged Property shall be operated in
such a manner that the licenses, permits and
authorizations shall remain in full force and effect,
(2) without the lender's consent, the licenses, permits
and authorizations may not be (a) transferred to any
location other than the Mortgaged Property or (b)
pledged as collateral for any other loan or
indebtedness and (3) so long as the related Mortgage
Loan remains outstanding, the borrower may not without
the lender's consent (a) rescind, withdraw, revoke,
amend, modify, supplement or otherwise alter the
nature, tenor or scope of the certificate of need for
the related Mortgaged Property, (b) amend or otherwise
change the related Mortgaged Property's authorized bed
capacity and/or the number of beds approved by the
department of health, (c) replace or transfer all or
any part of any related Mortgaged Property's beds to
another site or location or (d) terminate, materially
modify, or materially amend a lease or management
contract in effect with respect to the related
Mortgaged Property.
(D) As of the date of the origination of such Mortgage
Loan, all cost reports required to be filed under the
Medicare, Medicaid, or other similar programs with
respect to the related Mortgaged Property were filed as
required.
(E) As of the Cut-Off Date, the Mortgage Loan Seller has
not received notice that the related borrower or
related operator as the case may be, has failed to file
within the time permitted, including any extensions
thereof, all such Medicare, Medicaid or other similar
program costs reports.
(F) As of the Cut-Off Date, Mortgage Loan Seller has not
received notice that either the related borrower or
operator, as the case may be, with respect to the
related Mortgaged Property or its operation of such
Mortgaged Property (A) is subject to a material audit
adjustment or material decrease in reimbursement with
respect to its participation in any third-party
reimbursement program or (B) has been notified that any
managed care or other third-party reimbursement program
contract is being or has been canceled, not renewed, or
downgraded in any material respect or that any such
action is pending, threatened, or contemplated.
(xlviii) With respect to each Mortgage Loan as to which the
related Mortgaged Property is operated as a franchise restaurant:
(A) As of the Cut-Off Date, the term of each Franchise
Restaurant Loan is the shorter of (1) 15 years, (2) the
remaining term of the related franchise agreement or
(3) 10 years inside the expiration of any related
Ground Lease.
(B) As of the Cut-Off Date, there are no material defaults
under the related franchise agreement and, to the best
of the Mortgage Loan Seller's knowledge, no pending
defaults, and no upgrades for capital improvements or
other capital intensive items required in order to
maintain the franchise agreement, except those already
reserved for in full in cash.
(xlix) With respect to any mortgage loan secured by a mortgage
constituting a valid first lien on an unencumbered interest of the
mortgagor as lessee under a ground lease of the related mortgaged
property, but not by the related fee interest in such mortgaged
property, the seller represents and warrants that:
(A) Except with respect to the Mortgage Loan secured by the
Mortgaged Property identified on the Mortgage Loan
Schedule as "Landings & Marina" (as to which lessor is
the State of Florida), the lessor under such ground
lease has agreed in writing and included in the related
mortgage file that the ground lease may not be amended,
modified, canceled or terminated without the prior
written consent of the mortgagee;
(B) The ground lease is not subject to any liens or
encumbrances superior to, or of equal priority with,
the mortgage. The ground lease is and, except with
respect to the Mortgage Loans secured by the Mortgaged
Properties identified on the Mortgage Loan Schedule as
"Landings & Marina", Applebee's (Muncie) and Applebee's
(Speedway), provides that it shall remain, prior to any
mortgage or other lien upon the related fee interest;
and
(C) Under the terms of the ground lease and/or the related
mortgage, any related insurance proceeds or
condemnation award (other than in respect of a total or
substantially total loss or taking) will be applied
either (1) to the repair or restoration of all or part
of the related mortgaged property or (2) to the payment
of the outstanding principal balance of the mortgage
loan, together with any accrued interest.
(c) It is understood and agreed that the representations and warranties
set forth in this Section 2.05 shall survive delivery of the respective Mortgage
Files to the Trustee or a Custodian on its behalf and shall inure to the benefit
of the Persons for whose benefit they were made for so long as the Trust remains
in existence, notwithstanding any restrictive or qualified endorsement or
assignment. Upon discovery by any of the parties hereto of a breach of any of
the representations and warranties set forth in subsection (a) above which
materially and adversely affects the interests of the Certificateholders or any
party hereto or a breach of any of the representations and warranties set forth
in subsection (b) above which materially and adversely affects the value of any
Mortgage Loan or the interests therein of the Certificateholders, the party
discovering such breach shall give prompt written notice to each of the other
parties hereto.
SECTION 2.06 Representations and Warranties of the Master Servicer.
(a) The Master Servicer hereby represents and warrants to the other
parties hereto and for the benefit of the Certificateholders, as of the Closing
Date, that:
(i) The Master Servicer is duly organized, validly existing
and in good standing as a limited partnership under the laws of the
State of Missouri, 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 organizational documents or constitute a default (or an
event which, with notice or lapse of time, or both, would constitute a
default) under, or result in the breach of, any material agreement or
other instrument to which it is a party or which is applicable to it or
any of its assets, which default, in the Master Servicer's good faith
and reasonable judgment, is likely to materially and adversely affect
either the ability of the Master Servicer to perform its obligations
under this Agreement or the financial condition of the Master Servicer.
(iii) The Master Servicer (and its general partner on its
behalf) has the full power and authority to enter into and consummate
all transactions contemplated by this Agreement, has duly authorized
the execution, delivery and performance of this Agreement, and has duly
executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by each of the other parties hereto, constitutes a valid,
legal and binding obligation of the Master Servicer, enforceable
against the Master Servicer in accordance with the terms hereof,
subject to (A) applicable bankruptcy, insolvency, reorganization,
moratorium and other laws affecting the enforcement of creditors'
rights generally, and (B) general principles of equity, regardless of
whether such enforcement is considered in a proceeding in equity or at
law.
(v) The Master Servicer is not in violation of, and its
execution and delivery of this Agreement and its performance and
compliance with the terms of this Agreement will not constitute a
violation of, any law, any order or decree of any court or arbiter, or
any order, regulation or demand of any federal, state or local
governmental or regulatory authority, which violation, in the Master
Servicer's good faith and reasonable judgment, is likely to affect
materially and adversely either the ability of the Master Servicer to
perform its obligations under this Agreement or the financial condition
of the Master Servicer.
(vi) No litigation is pending or, to the best of the Master
Servicer's knowledge, threatened against the Master Servicer which
would prohibit the Master Servicer from entering into this Agreement
or, in the Master Servicer's good faith and reasonable judgment, is
likely to materially and adversely affect either the ability of the
Master Servicer to perform its obligations under this Agreement or the
financial condition of the Master Servicer.
(vii) Each officer or employee of the Master Servicer or its
general partner that has responsibilities concerning the servicing and
administration of the Mortgage Loans is covered by errors and omissions
insurance in the amounts and with the coverage required Section
3.07(c). None of the Master Servicer, its general partner or any of
their respective officers or employees that is involved in the
servicing or administration of the Mortgage Loans has been refused such
coverage or insurance.
(b) The representations and warranties of the Master Servicer set forth
in Section 2.06(a) shall survive the execution and delivery of this Agreement
and inure to the benefit of the Persons for whose benefit they were made for so
long as the Trust remains in existence. Upon discovery by any of the parties
hereto of a breach of any of such representations and warranties which
materially and adversely affects the interests of the Certificateholders or any
party hereto, the party discovering such breach shall give prompt written notice
to each of the other parties hereto.
(c) Each successor Master Servicer (if any) shall be deemed to have
made, as of the date of its succession, each of the representations set forth in
Section 2.06(a), subject to such appropriate modifications to the representation
and warranty set forth in Section 2.06(a)(i) to accurately reflect such
successor's jurisdiction of organization and whether it is a corporation,
partnership, bank, association or other type of organization, and without regard
to the references to general partner if such successor is not a partnership.
SECTION 2.07 Representations and Warranties of the Special Servicer.
(a) The Special Servicer hereby represents and warrants to the other
parties hereto and for the benefit of the Certificateholders, as of the Closing
Date, that:
(i) The Special Servicer is duly organized, validly existing
and in good standing as a corporation under the laws of the State of
Florida, and the Special Servicer is in compliance with the laws of
each State in which any Mortgaged Property is located to the extent
necessary to perform its obligations under this Agreement.
(ii) The execution and delivery of this Agreement by the
Special Servicer, and the performance and compliance with the terms of
this Agreement by the Special Servicer, will not violate the Special
Servicer's organizational documents or constitute a default (or an
event which, with notice or lapse of time, or both, would constitute a
default) under, or result in the breach of, any material agreement or
other instrument to which it is a party or which is applicable to it or
any of its assets, which default, in the Special Servicer's good faith
and reasonable judgment, is likely to materially and adversely effect
either the ability of the Special Servicer to perform its obligations
under this Agreement or the financial condition of the Special
Servicer.
(iii) The Special Servicer has the full power and authority to
enter into and consummate all transactions contemplated by this
Agreement, has duly authorized the execution, delivery and performance
of this Agreement, and has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by each of the other parties hereto, constitutes a valid,
legal and binding obligation of the Special Servicer, enforceable
against the Special Servicer in accordance with the terms hereof,
subject to (A) applicable bankruptcy, insolvency, reorganization,
moratorium and other laws affecting the enforcement of creditors'
rights generally, and (B) general principles of equity, regardless of
whether such enforcement is considered in a proceeding in equity or at
law.
(v) The Special Servicer is not in violation of, and its
execution and delivery of this Agreement and its performance and
compliance with the terms of this Agreement will not constitute a
violation of, any law, any order or decree of any court or arbiter, or
any order, regulation or demand of any federal, state or local
governmental or regulatory authority, which violation, in the Special
Servicer's good faith and reasonable judgment, is likely to affect
materially and adversely either the ability of the Special Servicer to
perform its obligations under this Agreement or the financial condition
of the Special Servicer.
(vi) No litigation is pending or, to the best of the Special
Servicer's knowledge, threatened against the Special Servicer which
would prohibit the Special Servicer from entering into this Agreement
or, in the Special Servicer's good faith and reasonable judgment, is
likely to materially and adversely affect either the ability of the
Special Servicer to perform its obligations under this Agreement or the
financial condition of the Special Servicer.
(vii) Each officer or employee of the Special Servicer that
has responsibilities concerning the servicing and administration of the
Mortgage Loans is covered by errors and omissions insurance in the
amounts and with the coverage required by Section 3.07(c). None of the
Special Servicer, its general partner or any of their respective
officers or employees that is involved in the servicing or
administration of the Mortgage Loans has been refused such coverage or
insurance.
(b) The representations and warranties of the Special Servicer set
forth in Section 2.07(a) shall survive the execution and delivery of this
Agreement and inure to the benefit of the Persons for whose benefit they were
made for so long as the Trust remains in existence. Upon discovery by any of the
parties hereto of a breach of any of such representations and warranties which
materially and adversely affects the interests of the Certificateholders or any
party hereto, the party discovering such breach shall give prompt written notice
to each of the other parties hereto.
(c) Each successor Special Servicer (if any) shall be deemed to have
made, as of the date of its succession, each of the representations set forth in
Section 2.07(a), subject to such appropriate modifications to the representation
and warranty set forth in Section 2.07(a)(i) to accurately reflect such
successor's jurisdiction of organization and whether it is a corporation,
partnership, bank, association or other type of organization, and without regard
to the references to general partner if such successor is not a partnership.
SECTION 2.08 Representations and Warranties of the Trustee
and the REMIC Administrator.
(a) Norwest Bank Minnesota, National Association, both in its capacity
as Trustee and in its capacity as REMIC Administrator (the "Bank"), hereby
represents and warrants to the other parties hereto and for the benefit of the
Certificateholders, as of the Closing Date, that:
(i) The Bank is a national bank duly organized, validly
existing and in good standing under the laws of the United States and
is, shall be or, if necessary, shall appoint a co-trustee that is, in
compliance with the laws of each State in which any Mortgaged Property
is located to the extent necessary to ensure the enforceability of each
Mortgage Loan and to perform its obligations under this Agreement.
(ii) The execution and delivery of this Agreement by the Bank,
and the performance and compliance with the terms of this Agreement by
the Bank, do not violate the Bank's organizational documents or
constitute a default (or an event which, with notice or lapse of time,
or both, would constitute a default) under, or result in the breach of,
any material agreement or other instrument to which it is a party or
which is applicable to it or any of its assets, which default, in the
Bank's good faith and reasonable judgment, is likely to materially and
adversely affect either the ability of the Bank to perform its
obligations under this Agreement or the financial condition of the
Bank.
(iii) The Bank has the full power and authority to enter into
and consummate all transactions contemplated by this Agreement, has
duly authorized the execution, delivery and performance of this
Agreement, and has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by each of the other parties hereto, constitutes a valid,
legal and binding obligation of the Bank, enforceable against the Bank
in accordance with the terms hereof, subject to (A) applicable
bankruptcy, insolvency, reorganization, moratorium and other laws
affecting the enforcement of creditors' rights generally, and (B)
general principles of equity, regardless of whether such enforcement is
considered in a proceeding in equity or at law.
(v) The Bank is not in violation of, and its execution and
delivery of this Agreement and its performance and compliance with the
terms of this Agreement will not constitute a violation of, any law,
any order or decree of any court or arbiter, or any order, regulation
or demand of any federal, state or local governmental or regulatory
authority, which violation, in the Bank's good faith and reasonable
judgment, is likely to affect materially and adversely either the
ability of the Bank to perform its obligations under this Agreement or
the financial condition of the Bank.
(vi) No litigation is pending or, to the best of the Bank's
knowledge, threatened against the Bank which would prohibit the Bank
from entering into this Agreement or, in the Bank's good faith and
reasonable judgment, is likely to materially and adversely affect
either the ability of the Bank to perform its obligations under this
Agreement or the financial condition of the Bank.
(b) The representations and warranties of the Bank set forth in Section
2.08(a) shall survive the execution and delivery of this Agreement and shall
inure to the benefit of the Persons for whose benefit they were made for so long
as the Trust remains in existence. Upon discovery by any of the parties hereto
of a breach of any of such representations and warranties which materially and
adversely affects the interests of the Certificateholders or any party hereto,
the party discovering such breach shall give prompt written notice to each of
the other parties hereto.
(c) Each successor Trustee or REMIC Administrator (if any and
regardless of whether the Trustee and the REMIC Administrator are different
Persons) shall be deemed to have made, as of the date of its succession, each of
the representations set forth in Section 2.08(a), subject to such appropriate
modifications to the representation and warranty set forth in Section 2.08(a)(i)
to accurately reflect such successor's jurisdiction of organization and whether
it is a corporation, partnership, bank, association or other type of
organization. In any such case, the term "Bank" shall be deemed to mean such
successor Trustee or the REMIC Administrator, as appropriate.
SECTION 2.09 Issuance of the Class R-I Certificates; Creation of the
REMIC I Regular Interests.
Concurrently with the assignment to the Trustee of the assets included
in REMIC I, and in exchange therefor, at the direction of the Depositor, the
REMIC I Regular Interests have been issued hereunder and the Trustee has
executed, authenticated and delivered to or upon the order of the Depositor, the
Class R-I Certificates in authorized denominations. The interests evidenced by
the Class R-I Certificates, together with the REMIC I Regular Interests,
constitute the entire beneficial ownership of REMIC I. The rights of the Class
R-I Certificateholders and REMIC II to receive distributions from the proceeds
of REMIC I in respect of the Class R-I Certificates and the REMIC I Regular
Interests, respectively, and all ownership interests of the Class R-I
Certificateholders and REMIC II in and to such distributions, shall be as set
forth in this Agreement.
SECTION 2.10 Conveyance of REMIC I Regular Interests; Acceptance of
REMIC II by the Trustee.
The Depositor, as of the Closing Date, and concurrently with the
execution and delivery hereof, does hereby assign without recourse all the
right, title and interest of the Depositor in and to the REMIC I Regular
Interests to the Trustee for the benefit of the Holders of the REMIC II
Certificates. The Trustee acknowledges the assignment to it of the REMIC I
Regular Interests and declares that it holds and will hold the same in trust for
the exclusive use and benefit of all present and future Holders of the REMIC II
Certificates.
SECTION 2.11 Issuance of the REMIC II Certificates.
Concurrently with the assignment to the Trustee of the REMIC I Regular
Interests, and in exchange therefor, at the direction of the Depositor, the
Trustee has executed, authenticated and delivered to or upon the order of the
Depositor, the REMIC II Certificates in authorized denominations evidencing the
entire beneficial ownership of REMIC II. The rights of the respective Classes of
Holders of the REMIC II Certificates to receive distributions from the proceeds
of REMIC II in respect of their REMIC II Certificates, and all ownership
interests of the respective Classes of Holders of the REMIC II Certificates in
and to such distributions, shall be as set forth in this Agreement.
<PAGE>
ARTICLE III
ADMINISTRATION AND SERVICING OF THE TRUST FUND
SECTION 3.01 Administration of the Mortgage Loans.
(a) Each of the Master Servicer and the Special Servicer shall service
and administer the Mortgage Loans that it is obligated to service and administer
pursuant to this Agreement on behalf of the Trustee, and in the best interests
and for the benefit of the Certificateholders, in accordance with any and all
applicable laws and the terms of this Agreement, the Insurance Policies and the
respective Mortgage Loans and, to the extent consistent with the foregoing, in
accordance with the Servicing Standard. Without limiting the foregoing, and
subject to Section 3.21, (i) the Master Servicer shall service and administer
all Mortgage Loans as to which no Servicing Transfer Event has occurred and all
Corrected Mortgage Loans, and (ii) the Special Servicer shall service and
administer (x) each Mortgage Loan (other than a Corrected Mortgage Loan) as to
which a Servicing Transfer Event has occurred, and (y) each REO Property;
provided, however, that the Master Servicer shall continue to collect
information and prepare all reports to the Trustee required hereunder with
respect to any Specially Serviced Mortgage Loans and REO Properties (and the
related REO Loans), and further to render such incidental services with respect
to any Specially Serviced Mortgage Loans and REO Properties as are specifically
provided for herein.
(b) Subject to Section 3.01(a), the Master Servicer and the Special
Servicer each shall have full power and authority, acting alone, to do or cause
to be done any and all things in connection with such servicing and
administration which it may deem necessary or desirable. Without limiting the
generality of the foregoing, each of the Master Servicer and the Special
Servicer, in its own name, with respect to each of the Mortgage Loans it is
obligated to service hereunder, is hereby authorized and empowered by the
Trustee to execute and deliver, on behalf of the Certificateholders and the
Trustee or any of them: (i) any and all financing statements, continuation
statements and other documents or instruments necessary to maintain the lien
created by any Mortgage or other security document in the related Mortgage File
on the related Mortgaged Property and related collateral; (ii) in accordance
with the Servicing Standard and subject to Sections 3.08 and 3.20, any and all
modifications, waivers, amendments or consents to or with respect to any
documents contained in the related Mortgage File; and (iii) any and all
instruments of satisfaction or cancellation, or of partial or full release or
discharge, and all other comparable instruments. Subject to Section 3.10, the
Trustee shall, at the written request of a Servicing Officer of the Master
Servicer or the Special Servicer, furnish, or cause to be so furnished, to the
Master Servicer and the Special Servicer, as the case may be, any limited powers
of attorney and other documents necessary or appropriate to enable them to carry
out their servicing and administrative duties hereunder; provided, however, that
the Trustee shall not be held liable for any misuse of any such power of
attorney by the Master Servicer or the Special Servicer.
(c) The relationship of each of the Master Servicer and Special
Servicer to the Trustee under this Agreement is intended by the parties to be
that of an independent contractor and not that of a joint venturer, partner or
agent.
(d) In the event that any two or more Mortgage Loans are
cross-collateralized with each other, the Master Servicer or Special Servicer,
as applicable, in accordance with the terms of this Agreement, shall service and
administer such Mortgage Loans as a single Mortgage Loan as and when it deems
necessary and appropriate, consistent with the Servicing Standard. If any
Cross-Collateralized Mortgage Loan becomes a Specially Serviced Mortgage Loan,
then each other Mortgage Loan that is cross-collateralized with it shall also
become a Specially Serviced Mortgage Loan. Similarly, no Cross-Collateralized
Mortgage Loan shall subsequently become a Corrected Mortgage Loan, unless and
until all Servicing Transfer Events in respect of each other Mortgage Loan that
is cross-collateralized with it, are remediated or otherwise addressed as
contemplated in the definition of "Specially Serviced Mortgage Loan".
SECTION 3.02 Collection of Mortgage Loan Payments.
Each of the Master Servicer and the Special Servicer shall make
reasonable efforts to collect all payments called for under the terms and
provisions of the Mortgage Loans it is obligated to service hereunder, and
shall, to the extent such procedures shall be consistent with this Agreement
(including without limitation, the Servicing Standard), follow such collection
procedures as it would follow were it the owner of such Mortgage Loans;
provided, however, that nothing herein contained shall be construed as an
express or implied guarantee by the Master Servicer or the Special Servicer of
the collectability of the Mortgage Loans. Consistent with the foregoing, the
Master Servicer or the Special Servicer each may waive any Default Charges in
connection with any specific delinquent payment on a Mortgage Loan it is
obligated to service hereunder.
Ninety (90) days prior to the maturity date of each Balloon Mortgage
Loan, the Master Servicer shall send a notice to the related Mortgagor of such
maturity date (with a copy to be sent to the Special Servicer) and shall request
confirmation that the Balloon Payment will be paid by such date.
SECTION 3.03 Collection of Taxes, Assessments and Similar Items;
Servicing Accounts; Reserve Accounts.
(a) The Master Servicer shall, as to all the Mortgage Loans, establish
and maintain one or more accounts (the "Servicing Accounts"), into which all
Escrow Payments shall be deposited and retained. Subject to any terms of the
related Mortgage Loan documents that specify the nature of the account in which
Escrow Payments shall be held, each Servicing Account shall be an Eligible
Account. Withdrawals of amounts so collected in respect of any Mortgage Loan
(and interest earned thereon) from a Servicing Account may be made only: (i) to
effect payment of real estate taxes, assessments, insurance premiums, ground
rents (if applicable) and comparable items in respect of related Mortgaged
Property; (ii) to reimburse the Master Servicer, the Special Servicer or the
Trustee, as applicable, for any unreimbursed Servicing Advances made thereby to
cover any of the items described in the immediately preceding clause (i); (iii)
to refund to the related Mortgagor any sums as may be determined to be overages;
(iv) to pay interest, if required and as described below, to the related
Mortgagor on balances in the Servicing Account (or, if and to the extent not
payable to the related Mortgagor, to pay such interest to the Master Servicer);
or (v) to clear and terminate the Servicing Account at the termination of this
Agreement in accordance with Section 9.01. The Master Servicer shall pay or
cause to be paid to the Mortgagors interest, if any, earned on the investment of
funds in Servicing Accounts maintained thereby, if required by law or the terms
of the related Mortgage Loan. If the Master Servicer shall deposit in a
Servicing Account any amount not required to be deposited therein, it may at any
time withdraw such amount from such Servicing Account, any provision herein to
the contrary notwithstanding. The Special Servicer shall promptly deliver all
Escrow Payments received by it to the Master Servicer for deposit in the
applicable Servicing Account.
(b) The Master Servicer shall (with the cooperation of the Special
Servicer in the case of Specially Serviced Mortgage Loans), (i) maintain
accurate records with respect to each Mortgaged Property reflecting the status
of real estate taxes, assessments and other similar items that are or may become
a lien thereon and the status of insurance premiums and any ground rents payable
in respect thereof and (ii) use reasonable efforts to obtain, from time to time,
all bills for the payment of such items (including renewal premiums) and shall
effect payment thereof prior to the applicable penalty or termination date. For
purposes of effecting any such payment, the Master Servicer shall apply Escrow
Payments as allowed under the terms of the related Mortgage Loan or, if such
Mortgage Loan does not require the related Mortgagor to escrow for the payment
of real estate taxes, assessments, insurance premiums, ground rents (if
applicable) and similar items, each of the Master Servicer and the Special
Servicer shall, as to those Mortgage Loans it is obligated to service hereunder
and subject to the Servicing Standard, enforce the requirement of the related
Mortgage that the Mortgagor make payments in respect of such items at the time
they first become due.
(c) In accordance with the Servicing Standard, the Master Servicer
shall, as to all the Mortgage Loans (but at the direction of the Special
Servicer in the case of Specially Serviced Mortgage Loans), advance with respect
to the related Mortgaged Property all such funds as are necessary for the
purpose of effecting the payment of (i) real estate taxes, assessments and other
similar items, (ii) ground rents or other rents (if applicable), and (iii)
premiums on Insurance Policies, in each instance if and to the extent Escrow
Payments (if any) collected from the related Mortgagor are insufficient to pay
such item when due and the related Mortgagor has failed to pay such item on a
timely basis, and provided that the particular advance would not, if made,
constitute a Nonrecoverable Servicing Advance (any determination that such
advance would be a Nonrecoverable Servicing Advance shall be made in accordance
with Section 3.12(g)). All such advances shall be reimbursable in the first
instance from related collections from the Mortgagors and further as provided in
Section 3.05(a). No costs incurred by the Master Servicer or the Special
Servicer in effecting the payment of real estate taxes, assessments and similar
items and, if applicable, ground rents on or in respect of such Mortgaged
Properties shall, for purposes hereof, including, without limitation,
calculating monthly distributions to Certificateholders, be added to the unpaid
principal balances of the related Mortgage Loans, notwithstanding that the terms
of such Mortgage Loans so permit.
(d) The Master Servicer shall, as to all the Mortgage Loans, establish
and maintain, as applicable, one or more accounts (the "Reserve Accounts"), into
which all Reserve Funds, if any, shall be deposited and retained. Withdrawals of
amounts so deposited may be made to pay for or otherwise cover, or (if
appropriate) to reimburse the related Mortgagor in connection with, the specific
items for which such Reserve Funds were escrowed, all in accordance with the
Servicing Standard and the terms of the related Mortgage Note, Mortgage and any
agreement with the related Mortgagor governing such Reserve Funds. Subject to
the terms of the related Mortgage Note and Mortgage, all Reserve Accounts shall
be Eligible Accounts. The Special Servicer shall promptly deliver all Reserve
Funds received by it to the Master Servicer for deposit in the applicable
Reserve Account.
(e) To the extent an operations and maintenance plan is required to be
established and executed pursuant to the terms of a Mortgage Loan, the Master
Servicer shall request from the Mortgagor written confirmation thereof within a
reasonable time after the later of the Closing Date and the date as of which
such plan is required to be established or completed. To the extent any repairs,
capital improvements, actions or remediations are required to have been taken or
completed pursuant to the terms of the Mortgage Loan, the Master Servicer shall
request from the Mortgagor written confirmation of such actions and remediations
within a reasonable time after the later of the Closing Date and the date as of
which such action or remediations are required by the related mortgage loan
documents to be or to have been taken or completed. To the extent a Mortgagor
shall fail to promptly respond to any inquiry described in this Section 3.03(e),
the Master Servicer shall determine whether the related Mortgagor has failed to
perform its obligations under the related Mortgage Loan and report any such
failure to the Special Servicer within a reasonable time after the date as of
which such actions or remediations are required to be or to have been taken or
completed.
SECTION 3.04 Certificate Account, the Distribution Account and the
REMIC II Distribution Account.
(a) The Master Servicer shall establish and maintain one or more
accounts (collectively, the "Certificate Account"), held on behalf of the
Trustee in trust for the benefit of the Certificateholders. The Certificate
Account shall be an Eligible Account. The Master Servicer shall deposit or cause
to be deposited in the Certificate Account, within two Business Days of receipt
(in the case of payments by Mortgagors or other collections on or in respect of
the Mortgage Loans) or as otherwise required hereunder, the following payments
and collections received or made by or on behalf of it subsequent to the Cut-off
Date (other than in respect of principal, interest and any other amounts due and
payable on the Mortgage Loans on or before the Cut-off Date, which payments
shall be delivered promptly to the Mortgage Loan Seller or its designee, with
negotiable instruments endorsed as necessary and appropriate without recourse):
(i) all payments on account of principal, including Principal
Prepayments, on the Mortgage Loans;
(ii) all payments on account of interest at the respective
Mortgage Rates on the Mortgage Loans and all Prepayment Premiums
received in respect of the Mortgage Loans;
(iii) to the extent allocable to the period that any Mortgage
Loan is a Specially Serviced Mortgage Loan, all payments on account of
Default Charges on such Mortgage Loan;
(iv) all Insurance Proceeds and Liquidation Proceeds (net of
all related Liquidation Expenses paid therefrom) received in respect of
any Mortgage Loan (other than Liquidation Proceeds that are received in
connection with a purchase by the Master Servicer or a Majority
Certificateholder of the Controlling Class of all of the Mortgage Loans
and any REO Properties in the Trust Fund and that are required to be
deposited in the Distribution Account pursuant to Section 9.01);
(v) any amounts required to be deposited by the Master
Servicer pursuant to Section 3.06 in connection with losses incurred
with respect to Permitted Investments of funds held in the Certificate
Account;
(vi) any amounts required to be deposited by the Master
Servicer or the Special Servicer pursuant to Section 3.07(b) in
connection with losses resulting from a deductible clause in a blanket
or master single interest policy;
(vii) any amounts required to be transferred from the REO
Account pursuant to Section 3.16(c); and
(viii) any amounts representing payments made by Mortgagors
that are allocable to cover items in respect of which Servicing
Advances have been made.
The foregoing requirements for deposit in the Certificate Account
shall be exclusive. Without limiting the generality of the foregoing, (A) actual
payments from Mortgagors in the nature of Escrow Payments, and amounts that the
Master Servicer and the Special Servicer are entitled to retain as additional
servicing compensation pursuant to Section 3.11(b) and Section 3.11(d),
respectively, need not be deposited by the Master Servicer in the Certificate
Account and (B) with respect to any amount representing a sub-servicing fee
(including, without limitation, a Primary Servicing Fee, if applicable) that
otherwise would be required to be deposited by the Master Servicer in the
Certificate Account and that, once so deposited, would have been permitted to be
withdrawn immediately from the Certificate Account pursuant to Section 3.05 as
part of the payment of the Master Servicing Fee, such amount shall be deemed to
have been deposited to and withdrawn from the Certificate Account for such
purpose to the extent that such sum has been retained by the Sub-Servicer
pursuant to the related Sub-Servicing Agreement. If the Master Servicer shall
deposit in the Certificate Account any amount not required to be deposited
therein, it may at any time withdraw such amount from the Certificate Account,
any provision herein to the contrary notwithstanding. The Master Servicer shall
promptly deliver to the Special Servicer, as additional special servicing
compensation in accordance with Section 3.11(d), assumption fees, modification
fees, Net Default Charges, charges for beneficiary statements or demands,
charges for checks returned for insufficient funds and similar fees (excluding
Prepayment Premiums) received by the Master Servicer with respect to Specially
Serviced Mortgage Loans. The Certificate Account shall be maintained as a
segregated account, separate and apart from trust funds created for mortgage
pass-through certificates of other series serviced and the other accounts of the
Master Servicer.
Upon receipt of any of the amounts described in clauses (i) through
(iv) above with respect to any Mortgage Loan, the Special Servicer shall
promptly, but in no event later than two Business Days after receipt, remit such
amounts to the Master Servicer for deposit into the Certificate Account in
accordance with the second preceding paragraph, unless the Special Servicer
determines, consistent with the Servicing Standard, that a particular item
should not be deposited because of a restrictive endorsement or other
appropriate reason. Any such amounts received by the Special Servicer with
respect to an REO Property shall be deposited by the Special Servicer into the
REO Account and remitted to the Master Servicer for deposit into the Certificate
Account pursuant to Section 3.16(c). With respect to any such amounts paid by
check to the order of the Special Servicer, the Special Servicer shall endorse
such check to the order of the Master Servicer and shall deliver promptly, but
in no event later than two Business Days after receipt, any such check to the
Master Servicer by overnight courier, unless the Special Servicer determines,
consistent with the Servicing Standard, that a particular item cannot be so
endorsed and delivered because of a restrictive endorsement or other appropriate
reason.
(b) The Trustee shall establish and maintain one or more trust accounts
(collectively, the "Distribution Account") to be held in trust for the benefit
of the Certificateholders. The Distribution Account shall be an Eligible
Account. On each Master Servicer Remittance Date, the Master Servicer shall
deliver to the Trustee, for deposit in the Distribution Account, an aggregate
amount of immediately available funds equal to the Master Servicer Remittance
Amount for such Master Servicer Remittance Date. If, at 1:00 p.m., New York City
time, on any Master Servicer Remittance Date, the Trustee has not received the
Master Servicer Remittance Amount, the Trustee shall provide notice to the
Master Servicer in the same manner as required by Section 4.03(a) hereof with
respect to P&I Advances.
In addition, the Master Servicer shall, as and when required
hereunder, deliver to the Trustee for deposit in the Distribution Account:
(i) any P&I Advances required to be made by the Master
Servicer in accordance with Section 4.03(a);
(ii) any amounts required to be deposited by the Master
Servicer pursuant to Section 3.19(e) in connection with Prepayment
Interest Shortfalls; and
(iii) any Liquidation Proceeds paid by the Master Servicer or
a Majority Certificateholder of the Controlling Class in connection
with the purchase of all of the Mortgage Loans and any REO Properties
pursuant to Section 9.01, exclusive of the portion of such Liquidation
Proceeds required to be deposited in the Certificate Account pursuant
to Section 9.01.
The Trustee shall, upon receipt, deposit in the Distribution
Account any and all amounts received or advanced by the Trustee that are
required by the terms of this Agreement to be deposited therein.
(c) The Trustee shall establish and maintain the REMIC II Distribution
Account in the name of the Trustee, in trust for the benefit of the
Certificateholders. The REMIC II Distribution Account shall be established and
maintained as an Eligible Account. With respect to each Distribution Date, the
Trustee shall withdraw from the Distribution Account and deposit in the REMIC II
Distribution Account on or before such date the amount of the Available
Distribution Amount (including P & I Advances) and Prepayment Premiums to be
distributed in respect of the REMIC I Regular Interests pursuant to Section
4.01(a)(i) and Section 4.01(d)(ii) hereof on such date.
(d) Funds in the Certificate Account may be invested in Permitted
Investments in accordance with the provisions of Section 3.06. The Master
Servicer shall give notice to the other parties hereto of the location of the
Certificate Account as of the Closing Date and of the new location of the
Certificate Account prior to any change thereof. The Distribution Account and
the REMIC II Distribution Account shall be established at the Corporate Trust
Office of the Trustee as of the Closing Date, and the Trustee shall give notice
to the other parties hereto of the new location of the Distribution Account
prior to any change thereof.
SECTION 3.05 Permitted Withdrawals From the Certificate Account
and the Distribution Account.
(a) The Master Servicer may, from time to time, make withdrawals from
the Certificate Account for any of the following purposes (the order set forth
below not constituting an order of priority for such withdrawals):
(i) to remit to the Trustee for deposit in the Distribution
Account the Master Servicer Remittance Amount for, and, to the extent
permitted or required by Section 4.03(a), any P&I Advances to be made
on, each Master Servicer Remittance Date;
(ii) to reimburse the Trustee or the Master Servicer, as
applicable, in that order, for unreimbursed P&I Advances made thereby
in respect of any Mortgage Loan or REO Loan, the Trustee's and the
Master Servicer's respective rights to reimbursement pursuant to this
clause (ii) with respect to any P&I Advance being payable from, and
limited to, amounts that represent Late Collections of interest and
principal (net of related Master Servicing Fees, Workout Fees and/or
Liquidation Fees payable therefrom) received in respect of the
particular Mortgage Loan or REO Loan as to which such P&I Advance was
made;
(iii) to pay to the Master Servicer earned and unpaid Master
Servicing Fees in respect of each Mortgage Loan and REO Loan, the
Master Servicer's right to payment pursuant to this clause (iii) with
respect to any Mortgage Loan or REO Loan being payable from, and
limited to, amounts received on or in respect of such Mortgage Loan
(whether in the form of payments, Liquidation Proceeds or Insurance
Proceeds) or such REO Loan (whether in the form of REO Revenues,
Liquidation Proceeds or Insurance Proceeds) that are allocable as a
recovery of interest thereon;
(iv) to pay to the Special Servicer, out of general
collections on the Mortgage Loans and any REO Properties, earned and
unpaid Special Servicing Fees in respect of each Specially Serviced
Mortgage Loan and REO Loan;
(v) to pay to the Special Servicer earned and unpaid Workout
Fees and Liquidation Fees to which it is entitled pursuant to, and from
the sources contemplated by Section 3.11(c);
(vi) to reimburse the Trustee, the Special Servicer or the
Master Servicer, as applicable, in that order, for any unreimbursed
Servicing Advances made thereby with respect to any Mortgage Loan or
REO Property, the Trustee's, the Special Servicer's and the Master
Servicer's respective rights to reimbursement pursuant to this clause
(vi) with respect to any Servicing Advance being payable from, and
limited to, (A) payments made by the related Mortgagor that are
allocable to cover the item in respect of which such Servicing Advance
was made, and (B) Liquidation Proceeds (net of Liquidation Fees payable
therefrom), Insurance Proceeds and, if applicable, REO Revenues
received in respect of the particular Mortgage Loan or REO Property as
to which such Servicing Advance was made;
(vii) to reimburse the Trustee, the Special Servicer or the
Master Servicer, as applicable, in that order, out of general
collections on the Mortgage Loans and any REO Properties, for any
unreimbursed Advances made thereby with respect to any Mortgage Loan,
REO Loan or REO Property that have been determined to be Nonrecoverable
Advances;
(viii) to pay the Trustee, the Special Servicer or the Master
Servicer, as applicable, in that order, any Advance Interest due and
owing thereto, the Trustee's, the Special Servicer's and the Master
Servicer's respective rights to payment pursuant to this clause (viii)
being payable from, and limited to, Default Charges collected in
respect of the Mortgage Loan or REO Loan as to which the related
Advances were made (but only to the extent allocable to the period when
such Mortgage Loan was a Specially Serviced Mortgage Loan or an REO
Loan);
(ix) at or following such time as the Master Servicer
reimburses itself, the Special Servicer or the Trustee, as applicable,
for any unreimbursed Advance pursuant to clause (ii), (vi) or (vii)
above or Section 3.03, and insofar as payment has not already been made
pursuant to clause (viii) above, to pay the Trustee, the Special
Servicer or the Master Servicer, as the case may be, and in that order,
out of general collections on the Mortgage Loans and any REO
Properties, any related Advance Interest accrued and payable on such
Advance;
(x) to pay the Master Servicer, as additional servicing
compensation in accordance with Sections 3.06(b) and 3.11(b), any Net
Investment Earnings in respect of amounts held in the Certificate
Account for any Collection Period;
(xi) to pay the Master Servicer, as additional servicing
compensation in accordance with Section 3.11(b), any Prepayment
Interest Excesses and, to the extent not allocable to the period that
any Mortgage Loan is a Specially Serviced Mortgage Loan or REO Loan,
any Default Charges collected on the Mortgage Loans, and to pay the
Special Servicer, as additional servicing compensation in accordance
with Section 3.11(d), any Net Default Charges collected on any Mortgage
Loan to the extent allocable to the period that such Mortgage Loan is a
Specially Serviced Mortgage Loan or REO Loan;
(xii) to reimburse, out of general collections on the Mortgage
Loans and any REO Properties, the Master Servicer, the Special
Servicer, the REMIC Administrator, the Depositor, or any of their
respective directors, officers, employees and agents any amounts
reimbursable to any such Person pursuant to Section 6.03, or to pay
directly to any third party any amount which if paid by any such Person
would be reimbursable thereto pursuant to Section 6.03;
(xiii) to pay, out of general collections on the Mortgage
Loans and any REO Properties, for (A) the reasonable costs of the
advice of counsel contemplated by Section 3.17(a), (B) the reasonable
costs of the Opinions of Counsel contemplated by Sections 3.09(b)(ii)
and 3.16(a), (C) the reasonable costs of Appraisals obtained pursuant
to Section 3.11(g) or 4.03(c), (D) the reasonable costs of obtaining
any REO Extension sought by the Special Servicer as contemplated by
Section 3.16(a), and (E) the cost of recording this Agreement in
accordance with Section 11.02(a);
(xiv) to pay itself, the Special Servicer, the Majority
Certificateholder of the Controlling Class, the Mortgage Loan Seller or
any other Person, 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;
(xv) to pay the Trustee or any of its respective 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) and
Section 8.13(a);
(xvi) to pay any costs and expenses contemplated in Section
3.11(h), the last sentence of Section 7.02 and the last sentence of
Section 8.08(a); and
(xvii) to clear and terminate the Certificate Account at the
termination of this Agreement pursuant to Section 9.01.
If amounts on deposit in the Certificate Account at any particular time
(after withdrawing any portion of such amounts deposited in the Certificate
Account in error) are insufficient to satisfy all payments, reimbursements and
remittances to be made therefrom as set forth in clauses (ii) through (xvi)
above, then the corresponding withdrawals from the Certificate Account shall be
made in the following priority and subject to the following rules: (A) if the
payment, reimbursement or remittance is to be made from a specific source of
funds, then such payment, reimbursement or remittance shall be made from that
specific source of funds on a pro rata basis with any and all other payments,
reimbursements and remittances to be made from such specific source of funds;
provided that where, as in clauses (ii), (vi) and (vii), an order of priority is
set forth to govern the application of funds withdrawn from the Certificate
Account pursuant to such clauses, payments, reimbursements or remittances
pursuant to any such clause shall be made in such order of priority to the
extent of available funds; and (B) if the payment, reimbursement or remittance
can be made from any funds on deposit in the Certificate Account, then
(following any withdrawals made from the Certificate Account in accordance with
the immediately preceding clause (A) above) such payment, reimbursement or
remittance shall be made from such general funds remaining on a pro rata basis
with any and all other payments, reimbursements or remittances to be made from
such general funds; provided that where, as in clauses (viii) and (ix), an order
of priority is set forth to govern the application of funds withdrawn from the
Certificate Account pursuant to such clauses, payments, reimbursements or
remittances pursuant to any such clause shall be made in such order of priority
to the extent of available funds.
The Master Servicer shall keep and maintain separate accounting
records, on a loan-by-loan and property-by-property basis when appropriate, in
connection with any withdrawal from the Certificate Account pursuant to clauses
(ii) through (xiv) above.
The Master Servicer shall pay to the Special Servicer (or to third
party contractors at the direction of the Special Servicer) from the Certificate
Account amounts permitted to be paid to it (or to such third party contractors)
therefrom promptly upon receipt of a certificate of a Servicing Officer of the
Special Servicer describing the item and amount to which the Special Servicer
(or such third party contractors) is entitled. The Master Servicer may rely
conclusively on any such certificate and shall have no duty to re-calculate the
amounts stated therein. The Special Servicer shall keep and maintain separate
accounting for each Specially Serviced Mortgage Loan and REO Property, on a
loan-by-loan and property-by-property basis, for the purpose of justifying any
request for withdrawal from the Certificate Account.
(b) The Trustee may, from time to time, make withdrawals from the
Distribution Account for any of the following purposes (the order set forth
below not constituting an order of priority for such withdrawals):
(i) [reserved];
(ii) to pay the Trustee accrued and unpaid Trustee Fees
pursuant to Section 8.05(a), and to reimburse the Trustee for any other
amounts to which it is entitled to be reimbursed from the Distribution
Account pursuant to this Agreement;
(iii) to pay the Trustee or any of its respective 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);
(iv) as contemplated by Section 11.01(g), to pay for the
reasonable costs of the Opinions of Counsel sought by the Trustee as
contemplated by Section 11.01(a) or 11.01(c) in connection with any
amendment to this Agreement requested by the Trustee which amendment is
in furtherance of the rights and interests of Certificateholders;
(v) to pay for the reasonable costs of the Opinions of Counsel
sought by the Trustee as contemplated by Section 11.02(a);
(vi) to (A) pay any and all federal, state and local taxes
imposed on REMIC I or REMIC II or on the assets or transactions of
either such REMIC, together with all incidental costs and expenses, and
any and all reasonable expenses relating to tax audits, if and to the
extent that either (1) none of the Trustee, the Master Servicer, the
Special Servicer or the REMIC Administrator is liable therefor pursuant
to Section 10.01(d) and/or Section 10.01(h) or (2) any such Person that
may be so liable has failed to timely make the required payment, and
(B) reimburse the REMIC Administrator for reasonable expenses incurred
by and reimbursable to it by the Trust pursuant to Section 10.01(d)
and/or Section 10.01(g); and
(vii) to clear and terminate the Distribution Account at the
termination of this Agreement pursuant to Section 9.01.
(c) The Trustee may make withdrawals from the REMIC II Distribution
Account for any of the following purposes: (i) to make distributions to
Certificateholders (other than Holders of the Class R-I Certificates) on each
Distribution Date pursuant to Section 4.01(b) or Section 9.01, as applicable;
and (ii) to clear and terminate the REMIC II Distribution Account at the
termination of this Agreement pursuant to Section 9.01.
SECTION 3.06 Investment of Funds in the Certificate Account and the REO
Account.
(a) The Master Servicer may direct any depository institution
maintaining the Certificate Account, and the Special Servicer may direct any
depository institution maintaining the REO Account, to invest, or if it is such
depository institution, may itself invest, the funds held therein (each such
account, for purposes of this Section 3.06, an "Investment Account") in one or
more Permitted Investments bearing interest or sold at a discount, and maturing,
unless payable on demand, 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. All such Permitted Investments shall be
held to maturity, unless payable on demand, in which case such investments may
be sold at any time. Any investment of funds in an Investment Account shall be
made in the name of the Trustee for the benefit of the Certificateholders (in
its capacity as such). The Master Servicer (with respect to Permitted
Investments of amounts in the Certificate Account) and the Special Servicer
(with respect to Permitted Investments of amounts in the REO Account), on behalf
of the Trustee for the benefit of the Certificateholders, shall (and the Trustee
hereby designates the Master Servicer and the Special Servicer, as applicable,
as the Person that shall) maintain continuous possession of any Permitted
Investment 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. If 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) or the Special Servicer (in the case of the
REO Account) shall:
(x) 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
(y) demand payment of all amounts due thereunder
promptly upon determination by the Master Servicer or the
Special Servicer, 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) Whether or not the Master Servicer directs the investment of funds
in the Certificate Account, interest and investment income realized on funds
deposited therein, to the extent of the Net Investment Earnings, if any, for
such Investment Account for each Collection Period, shall be for the sole and
exclusive benefit of the Master Servicer and shall be subject to its withdrawal
in accordance with Section 3.05(a). Whether or not the Special Servicer directs
the investment of funds in the REO Account, interest and investment income
realized on funds deposited therein, to the extent of the Net Investment
Earnings, if any, for such Investment Account for each Collection Period, 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). If any loss shall
be incurred in respect of any Permitted Investment on deposit in any Investment
Account, the Master Servicer (in the case of the Certificate Account) and the
Special Servicer (in the case of the REO Account) shall promptly deposit therein
from its own funds, without right of reimbursement, no later than the end of the
Collection Period during which such loss was incurred, the amount of the Net
Investment Loss, if any, for such Collection Period. The Trustee shall have no
liability whatsoever with respect to any such losses, except to the extent that
it is the obligor on any such Permitted Investment.
(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 and the Master Servicer or the Special Servicer, as applicable, has
not taken such action, the Trustee may and, subject to Section 8.02, upon the
request of Holders of Certificates entitled to not less than 25% of the Voting
Rights allocated to any Class, shall take such action as may be appropriate to
enforce such payment or performance, including, without limitation, the
institution and prosecution of appropriate proceedings.
(d) Notwithstanding the investment of funds held in any Investment
Account, for purposes of the calculations hereunder, including, without
limitation, the calculation of the Available Distribution Amount and the Master
Servicer Remittance Amount, the amounts so invested (but not any interest earned
thereon) shall be deemed to remain on deposit in such Investment Account.
SECTION 3.07 Maintenance of Insurance Policies; Errors and Omissions
and Fidelity Coverage.
(a) Each of the Master Servicer and the Special Servicer shall, as to
those Mortgage Loans it is obligated to service hereunder, use its best efforts
in accordance with the Servicing Standard to cause the related Mortgagor to
maintain (and, if the related Mortgagor is required by the terms of the related
Mortgage Loan and does not so maintain, the Master Servicer (even in the case of
Specially Serviced Mortgage Loans) shall itself maintain (subject to the
provisions of this Agreement regarding Nonrecoverable Advances, and further
subject to Section 3.11(h) hereof), to the extent the Trustee, as mortgagee on
behalf of the Certificateholders, has an insurable interest and to the extent
available at commercially reasonable rates) all insurance coverage as is
required under the related Mortgage (subject to applicable law); provided that
if any Mortgage permits the holder thereof to dictate to the Mortgagor the
insurance coverage to be maintained on such Mortgaged Property, the Master
Servicer or the Special Servicer, as appropriate, shall impose such insurance
requirements as are consistent with the Servicing Standard. The Special Servicer
shall cause to be maintained for each REO Property, in each case with an insurer
that possesses the Required Claims-Paying Ratings at the time such policy is
purchased, no less insurance coverage than was previously required of the
related Mortgagor under the related Mortgage and, if the related Mortgage did
not so require, hazard insurance, public liability insurance and business
interruption or rent loss insurance in such amounts as are consistent with the
Servicing Standard, and the Special Servicer shall be reimbursed for the premium
costs thereof as a Servicing Advance pursuant to and to the extent permitted
under Section 3.05(a). All such insurance policies shall contain a "standard"
mortgagee clause, with loss payable to the Master Servicer (in the case of
insurance maintained in respect of the Mortgaged Properties) or the Special
Servicer (in the case of insurance maintained in respect of REO Properties) on
behalf of the Trustee, shall be issued by an insurer authorized under applicable
law to issue such insurance, and, unless prohibited by the related Mortgage, may
contain a deductible clause (not in excess of a customary amount). Any amounts
collected by the Master Servicer or Special Servicer under any such 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 Standard) shall be
deposited in the Certificate Account, subject to withdrawal pursuant to Section
3.05(a), in the case of amounts received in respect of a Mortgage Loan, or in
the REO Account, subject to withdrawal pursuant to Section 3.16(c), in the case
of amounts received in respect of an REO Property. Any cost incurred by the
Master Servicer or the Special Servicer, as applicable, in maintaining any such
insurance shall not, for purposes hereof, including, without limitation,
calculating monthly distributions to Certificateholders, be added to the unpaid
principal balance or Stated Principal Balance of the related Mortgage Loan,
notwithstanding that the terms of such Mortgage Loan so permit.
(b) (i) If the Master Servicer or the Special Servicer shall
obtain and maintain a blanket policy insuring against hazard losses on
any or all of the Mortgaged Properties (in the case of the Master
Servicer) or REO Properties (in the case of the Special Servicer),
then, to the extent such policy (i) is obtained from a Qualified
Insurer that possesses the Required Claims-Paying Ratings, and (ii)
provides protection equivalent to the individual policies otherwise
required, the Master Servicer or the Special Servicer, as the case may
be, shall conclusively be deemed to have satisfied its obligation to
cause hazard insurance to be maintained on the Mortgaged Properties or
REO Properties, as applicable, so covered, and the premium costs
thereof shall be, if and to the extent they are specifically
attributable either to a specific Mortgaged Property during any period
that the related Mortgagor has failed to maintain the hazard insurance
required under the related Mortgage Loan in respect of such Mortgaged
Property or to a specific REO Property, a Servicing Advance
reimbursable pursuant to and to the extent permitted under Section
3.05(a); provided that, to the extent that such premium costs are
attributable to properties other than Mortgaged Properties and/or REO
Properties or are attributable to Mortgaged Properties as to which the
hazard insurance required under the related Mortgage Loan is being
maintained, they shall be borne by the Master Servicer or Special
Servicer, as the case may be, without right of reimbursement. Such a
blanket policy may contain a deductible clause (not in excess of a
customary amount), in which case the Master Servicer or the Special
Servicer, as appropriate, shall, if there shall not have been
maintained on the related Mortgaged Property or REO Property, as
applicable, a 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 property specific policy (taking into
account any deductible clause that would have been permitted therein),
promptly deposit into the Certificate Account from its own funds
(without right of reimbursement) the amount of such losses up to the
difference between the amount of the deductible clause in such blanket
policy and the amount of any deductible clause that would have been
permitted under such property specific policy. The Master Servicer and
the Special Servicer each agree to prepare and present, on behalf of
itself, the Trustee and the Certificateholders, claims under any such
blanket policy maintained by it in a timely fashion in accordance with
the terms of such policy.
(ii) If the Master Servicer shall cause any Mortgaged Property
or the Special Servicer shall cause any REO Property to be covered by a
master single interest insurance policy naming the Master Servicer or
the Special Servicer, as applicable, on behalf of the Trustee as the
loss payee, then to the extent such policy (i) is obtained from a
Qualified Insurer that possesses the Required Claims-Paying Ratings and
(ii) provides protection equivalent to the individual policies
otherwise required, the Master Servicer or the Special Servicer, as
applicable, shall conclusively be deemed to have satisfied its
obligation to cause such insurance to be maintained on such Mortgaged
Property (in the case of the Master Servicer) or REO Property (in the
case of the Special Servicer). If the Master Servicer shall cause any
Mortgaged Property as to which the related Mortgagor has failed to
maintain the required insurance coverage, or the Special Servicer shall
cause any REO Property, to be covered by such master single interest
insurance policy, then 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) paid by the
Master Servicer or the Special Servicer, as applicable, shall
constitute a Servicing Advance. The Master Servicer shall, consistent
with the Servicing Standard and the terms of the related Mortgage Loan
documents, pursue the related Mortgagor for the amount of such
incremental costs. All other costs associated with any such master
single interest insurance policy (including, without limitation, any
minimum or standby premium payable for such policy) shall be borne by
the Master Servicer or Special Servicer, as the case may be, without
right of reimbursement. Such master single interest insurance policy
may contain a deductible clause (not in excess of a customary amount),
in which case the Master Servicer or the Special Servicer, as
applicable, shall, in the event that there shall not have been
maintained on the related Mortgaged Property or REO Property, as the
case may be, 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 property specific policy had it been
maintained, promptly deposit into the Certificate Account from its own
funds (without right of reimbursement) 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.
(c) Each of the Master Servicer and the Special Servicer shall at all
times during the term of this Agreement keep in force with recognized insurers
that possess the Required Claims-Paying Ratings a fidelity bond in such form and
amount as would permit it to be a qualified Fannie Mae or Freddie Mac
seller-servicer of multifamily mortgage loans. Each of the Master Servicer and
the Special Servicer shall be deemed to have complied with the foregoing
provision if an Affiliate thereof has such fidelity bond coverage and, by the
terms of such fidelity bond, the coverage afforded thereunder extends to the
Master Servicer or the Special Servicer, as the case may be. Such fidelity bond
shall provide that it may not be canceled without 30 days' prior written notice
to the Trustee.
In addition, each of the Master Servicer and the Special Servicer shall
at all times during the term of this Agreement keep in force with recognized
insurers that possess the Required Claims-Paying Ratings a policy or policies of
insurance covering loss occasioned by the errors and omissions of its (or, in
the case of the initial Master Servicer, its general partner's) officers and
employees in connection with its obligation to service the Mortgage Loans for
which it is responsible hereunder, which policy or policies shall be in such
form and amount as would permit it to be a qualified Fannie Mae or Freddie Mac
seller-servicer of multifamily mortgage loans. Any such errors and omissions
policy, if required, shall provide that it may not be canceled without 30 days'
prior written notice to the Trustee.
It is understood and agreed that the Rating Agencies have
affirmed in writing that the use of certain specified insurance carriers by the
Master Servicer, the Special Servicer and/or Sub-Servicers will not, in and of
itself, cause a downgrade, qualification or change in the rating assigned to any
Class of Certificates, notwithstanding that such insurance carriers do not
possess the Required Claims-Paying Ratings as of the Closing Date. It is further
understood and agreed that if the claims-paying ratings of any such insurance
carrier are downgraded below the level assigned as of the Closing Date, such
insurance carrier promptly shall be replaced by a Qualified Insurer that
possesses the Required Claims-Paying Ratings.
(d) All insurance coverage required to be maintained under this Section
3.07 shall be obtained from Qualified Insurers.
SECTION 3.08 Enforcement of Due-On-Sale Clauses; Assumption
Agreements; Subordinate Financing.
(a) As to each Mortgage Loan which contains a provision in the nature
of a "due-on-sale" clause, which by its terms:
(i) provides that such Mortgage Loan shall (or may at the
mortgagee's option) become due and payable upon the sale or other
transfer of an interest in the related Mortgaged Property or of a
controlling interest in the related Mortgagor; 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, each of
the Master Servicer and the Special Servicer shall, on behalf of the Trustee as
the mortgagee of record, as to those Mortgage Loans it is obligated to service
hereunder, 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 Standard, but subject to Section 3.20(a)(iii); provided that,
notwithstanding anything to the contrary contained herein, neither the Master
Servicer nor the Special Servicer shall waive any right it has, or grant any
consent it is otherwise entitled to withhold, under any related "due-on-sale"
clause unless it first (1) shall have provided, at least five Business Days
prior to the granting of such waiver or consent, to the Directing
Certificateholder and, in the case of the Master Servicer, to the Special
Servicer written notice of the matter and a written explanation of the
surrounding circumstances, (2) upon request made within such five Business
Day-period, shall have discussed the matter with the Directing Certificateholder
and/or, in the case of the Master Servicer, with the Special Servicer and (3) if
the then-outstanding principal balance of the subject Mortgage Loan (together
with the then-outstanding aggregate principal balance of all other Mortgage
Loans to the same Mortgagor or to other Mortgagors that are, to the Master
Servicer's or Special Servicer's, as applicable, actual knowledge, Affiliates of
the Mortgagor under the subject Mortgage Loan) is more than 2% of the
then-outstanding aggregate principal balance of the Mortgage Pool, shall have
obtained written confirmation from each Rating Agency that such action shall not
result in a qualification, downgrade or withdrawal of the rating then assigned
by such Rating Agency to any Class of Certificates; and provided, further, that,
notwithstanding anything to the contrary contained herein, neither the Master
Servicer nor the Special Servicer shall waive any right it has, or grant any
consent it is otherwise entitled to withhold, under any related "due-on-sale"
clause governing the transfer of any Mortgaged Property which secures, or
controlling interests in any Mortgagor under, a Group of Cross-Collateralized
Mortgage Loans unless all of the Mortgaged Properties securing, or a controlling
interest in all the Mortgagors (if more than one) under, such Group of
Cross-Collateralized Mortgage Loans are transferred simultaneously to the same
transferee. In the event that the Master Servicer or Special Servicer intends or
is required, in accordance with the preceding sentence, the Mortgage Loan
documents or applicable law, to permit the transfer of any Mortgaged Property,
the Master Servicer or the Special Servicer, as the case may be, may, if
consistent with the Servicing Standard, enter into a substitution of liability
agreement, pursuant to which the original Mortgagor and any original guarantors
are released from liability, and the transferee and any new guarantors are
substituted therefor and become liable under the Mortgage Note and any related
guaranties and, in connection therewith, may require from the related Mortgagor
a reasonable and customary fee for the additional services performed by it,
together with reimbursement for any related costs and expenses incurred by it.
The Master Servicer or the Special Servicer, as the case may be, shall promptly
notify the Trustee in writing of any such agreement and forward the original
thereof to the Trustee for inclusion in the related Mortgage File.
(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, each of
the Master Servicer and the Special Servicer shall on behalf of the Trustee as
the mortgagee of record, as to those Mortgage Loans it is obligated to service
hereunder, 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 Standard, but subject to
Section 3.20(a)(iii); provided that, notwithstanding anything to the contrary
contained herein, neither the Master Servicer nor the Special Servicer shall
waive any right it has, or grant any consent it is otherwise entitled to
withhold, under any related "due-on-encumbrance" clause unless it first (1)
shall have provided, at least five Business Days prior to the granting of such
waiver or consent, to the Directing Certificateholder and, in the case of the
Master Servicer, to the Special Servicer written notice of the matter and a
written explanation of the surrounding circumstances, and (2) upon request made
within such five Business Day-period, shall have discussed the matter with the
Directing Certificateholder and/or, in the case of the Master Servicer, with the
Special Servicer; and provided, further, that, notwithstanding anything to the
contrary contained herein, neither the Master Servicer nor the Special Servicer
shall waive any right it has, or grant any consent it is otherwise entitled to
withhold, under any related "due-on-encumbrance" clause until it has received
written confirmation from each Rating Agency that such action would not result
in the qualification, downgrade or withdrawal of the rating then assigned by
such Rating Agency to any Class of Certificates.
(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.
SECTION 3.09 Realization Upon Defaulted Mortgage Loans.
(a) The Special Servicer shall, subject to subsections (b) through (d)
of this Section 3.09, exercise reasonable efforts, consistent with the Servicing
Standard, to foreclose upon or otherwise comparably convert (which may include
an REO Acquisition) the ownership of properties securing such of the Mortgage
Loans as come into and continue in default and 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, if the
Special Servicer determines, consistent with the Servicing Standard, that such
action would be in the best economic interest of the Trust. The Special Servicer
shall advance or direct the Master Servicer to advance, as contemplated by
Section 3.19(d), all costs and expenses to be incurred on behalf of the Trust in
any such proceedings, subject to each of the Master Servicer and the Special
Servicer being entitled to reimbursement for any such advance as a Servicing
Advance as provided in Section 3.05(a), and further subject to the Special
Servicer's being entitled to pay out of the related Liquidation Proceeds any
Liquidation Expenses incurred in respect of any Mortgage Loan, which Liquidation
Expenses were outstanding at the time such proceeds are received. In connection
with the foregoing, in the event of a default under any Mortgage Loan or Group
of Cross-Collateralized Mortgage Loans that are secured by real properties
located in multiple states, and such states include the State of California or
another state with a statute, rule or regulation comparable to the State of
California's "one action" rule, then the Special Servicer shall consult with
Independent counsel regarding the order and manner in which the Special Servicer
should foreclose upon or comparably proceed against such properties (the cost of
such consultation to be advanced by the Master Servicer as a Servicing Advance,
at the direction of the Special Servicer, subject to the Master Servicer's being
entitled to reimbursement therefor as a Servicing Advance as provided in Section
3.05(a)). When applicable state law permits the Special Servicer to select
between judicial and non-judicial foreclosure in respect of any Mortgaged
Property, the Special Servicer shall make such selection in a manner consistent
with the Servicing Standard. Nothing contained in this Section 3.09 shall be
construed so as to require the Special Servicer, on behalf of the Trust, to make
an offer 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 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 or otherwise, all such
offers to be made in a manner consistent with the Servicing Standard. 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 making an offer at
foreclosure or otherwise, the Special Servicer or the Master Servicer, as the
case may be, is authorized to have an Appraisal completed with respect to such
property (the cost of which Appraisal shall be advanced by the Master Servicer
as a Servicing Advance, subject to its being entitled to reimbursement therefor
as a Servicing Advance as provided in Section 3.05(a), such Advance to be made
at the direction of the Special Servicer when the Appraisal is obtained by the
Special Service).
(b) The Special Servicer shall not acquire any personal property
pursuant to this Section 3.09 (with the exception of cash or cash equivalents
pledged as collateral for a Mortgage Loan) 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 reasonable 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 will not cause either of
REMIC I or REMIC II to fail to qualify as a REMIC at any time that any
Certificate is outstanding or, subject to Section 3.17, cause the
imposition of a tax on the Trust under the REMIC Provisions.
(c) Notwithstanding the foregoing provisions of this Section 3.09,
neither the Special Servicer nor the Master Servicer shall, on behalf of the
Trustee, initiate foreclosure proceedings, obtain title to a Mortgaged Property
in lieu of foreclosure or otherwise, have a receiver of rents appointed with
respect to any Mortgaged Property, 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 Standard, based on a Phase I Environmental Assessment (and any
additional environmental testing that the Special Servicer deems necessary and
prudent) of such Mortgaged Property performed by an Independent Person who
regularly conducts Phase I Environmental Assessments and such additional
environmental testing, 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 and proceeding against the Mortgaged Property is reasonably
likely to produce a greater recovery to Certificateholders on a present
value basis (the relevant discounting of anticipated collections that
will be distributable to Certificateholders to be performed at the
related Net Mortgage Rate), taking into consideration any associated
liabilities, than not taking such actions and not proceeding against
such Mortgaged Property; 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/or 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 and proceeding against the Mortgaged Property is reasonably
likely to produce a greater recovery to Certificateholders on a present
value basis (the relevant discounting of anticipated collections that
will be distributable to Certificateholders to be performed at the
related Net Mortgage Rate), taking into consideration any associated
liabilities, than not taking such actions and not proceeding against
such Mortgaged Property.
The cost of such Phase I Environmental Assessment and any such
additional environmental testing, as well as the cost of any remedial,
corrective or other further action contemplated by clause (i) and/or clause (ii)
of the preceding paragraph, shall be advanced by the Master Servicer at the
direction of the Special Servicer given in accordance with the Servicing
Standard; provided, however, that the Master Servicer shall not be obligated in
connection therewith to advance any funds which, if so advanced, would
constitute a Nonrecoverable Servicing Advance. Amounts so advanced shall be
subject to reimbursement as Servicing Advances in accordance with Section
3.05(a).
(d) If the environmental testing contemplated by Section 3.09(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, the Special Servicer shall take
such action as is in accordance with the Servicing Standard (other than
proceeding against the Mortgaged Property, but including the sale of the
affected Mortgage Loan) and, at such time as it deems appropriate, may, on
behalf of the Trustee, release all or a portion of such Mortgaged Property from
the lien of the related Mortgage; provided that prior to the release of all or a
portion of the related Mortgaged Property from the lien of the related Mortgage,
(i) the Special Servicer shall have notified the Trustee in writing of its
intention to so release all or a portion of such Mortgaged Property, (ii) the
Trustee shall have notified the Certificateholders in writing of the Special
Servicer's intention to so release all or a portion of such Mortgaged Property
and (iii) the Holders of Certificates entitled to a majority of the Voting
Rights shall not have objected to such release within 30 days of the Trustee's
distributing such notice.
(e) The Special Servicer shall provide written reports to the Trustee,
the Master Servicer and the Rating Agencies 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 or
that any remedial, corrective or other further action contemplated by either
such clause is required, in each case until the earliest to occur of (i)
satisfaction of both such conditions and completion of all such remedial,
corrective or other further action, (ii) repurchase of the related Mortgage Loan
by the Mortgage Loan Seller and (iii) release of the lien of the related
Mortgage on such Mortgaged Property. The Trustee shall forward copies of all
such reports to the Certificateholders upon written request promptly following
its receipt thereof. In addition, the Master Servicer will deliver or cause to
be delivered to any of the Class F, Class G, Class H, Class J and Class K
Certificateholders that shall request a copy of any such written reports and any
Phase I Environmental Assessments within 15 days after receipt of such written
reports and Phase I Environmental Assessments from the Special Servicer.
(f) The Special Servicer shall file the information returns with
respect to the receipt of any mortgage interest received in a trade or business,
the reports of foreclosures and abandonments and reports relating to any
cancellation of indebtedness income with respect to any Mortgaged Property
required by Sections 6050H, 6050J and 6050P of the Code and deliver to the
Trustee an Officer's Certificate stating that such reports have been filed. Such
reports shall be in form and substance sufficient to meet the reporting
requirements imposed by such Sections 6050H, 6050J and 6050P of the Code.
(g) The Special Servicer shall have the right to determine, in
accordance with the Servicing Standard, 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.
The Master Servicer, at the direction of the Special Servicer, shall advance the
costs incurred in any such deficiency action, subject to its being entitled to
reimbursement therefor as a Servicing Advance as provided in Section 3.05(a).
(h) The Special Servicer shall maintain accurate records, certified by
a Servicing Officer, of each Final Recovery Determination in respect of any
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, the Master Servicer and the Rating Agencies no later than the tenth
Business Day following such Final Recovery Determination.
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 or Special Servicer of a notification that payment in full
shall be escrowed in a manner customary for such purposes, the Master Servicer
or Special Servicer, as the case may be, shall immediately notify the Trustee
and request delivery of the related Mortgage File by delivering thereto a
Request for Release in the form of Exhibit D attached hereto signed by a
Servicing Officer of the Master Servicer or Special Servicer, as applicable. Any
such Request for Release 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. Upon receipt of such notice and request
conforming in all material respects to the provisions hereof, the Trustee shall
promptly release, or cause any related Custodian to release, the related
Mortgage File to the Master Servicer or Special Servicer, as applicable. No
expenses incurred in connection with any instrument of satisfaction or deed of
reconveyance shall be chargeable to the Certificate Account.
(b) If from time to time, and as appropriate for servicing or
foreclosure of any Mortgage Loan, the Master Servicer or the Special Servicer
shall otherwise require any Mortgage File (or any portion thereof), then, upon
request of the Master Servicer or the Special Servicer and receipt therefrom of
a Request for Release in the form of Exhibit D attached hereto signed by a
Servicing Officer thereof, the Trustee shall release, or cause any related
Custodian to release, such Mortgage File (or portion thereof) to the Master
Servicer or the Special Servicer, as the case may be. Upon return of such
Mortgage File (or portion thereof) to the Trustee or the related Custodian, or
the delivery to the Trustee of a certificate of a Servicing Officer of the
Special Servicer 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, the Request for Release shall be released by the Trustee to the
Master Servicer or the Special Servicer, as applicable.
(c) The Trustee, if requested, shall promptly execute and deliver to
the Special Servicer any court pleadings, requests for trustee's sale or other
documents furnished by the Special Servicer and certified by it as being
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 or for any other purpose necessary or
advisable in the reasonable, good faith judgment of the Special Servicer;
provided, however, that the Special Servicer shall be responsible for the
preparation of all such documents and pleadings; and 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; Interest on Servicing Advances;
Payment of Certain Expenses; Obligations of the Trustee
Regarding Back-up Servicing Advances.
(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 (including, without limitation, each Specially Serviced Mortgage
Loan) and REO Loan. As to each such Mortgage Loan and REO Loan, the Master
Servicing Fee shall accrue at the applicable Master Servicing Fee Rate on the
basis of the same principal amount and for the same number of days respecting
which any related interest payment due on such Mortgage Loan or deemed to be due
on such REO Loan is computed under the terms of the related Mortgage Note (as
such terms may be changed or modified at any time following the Closing Date)
and applicable law. 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. Earned but unpaid Master Servicing Fees 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 Insurance Proceeds or Liquidation Proceeds, 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 accordance with the following
paragraph, except in connection with the transfer of all of the Master
Servicer's responsibilities and obligations under this Agreement or except as
provided in Section 3.22(d). The Master Servicer shall, monthly out of its
Master Servicing Fee, pay to any Sub-Servicer retained by the Master Servicer
such Sub-Servicer's sub-servicing fee (including, without limitation, any
Primary Servicing Fee, if applicable), to the extent such Sub-Servicer is
entitled thereto under the applicable Sub-Servicing Agreement.
Midland may, at its option, sell or pledge the rights to the
"Transferable Portion" (as hereinafter defined) of its Master Servicing Fee;
provided that in the event of any resignation or termination of Midland (or any
successor thereto) as Master Servicer, the rights of Midland or any transferee
of such Transferable Portion shall terminate (except for the right to receive
the Excess Portion (as defined below), if any, on any Distribution Date as set
forth in the penultimate sentence of this paragraph). In the event of the
appointment of a successor Master Servicer, the Trustee shall cooperate with
Midland to attempt to appoint a successor (which may be the Trustee) which,
subject to the Trustee's satisfaction as to quality of servicing and the best
interests of Certificateholders and the requirements of Article VII of this
Agreement, will perform the services of the Master Servicer for payment of an
amount (the "Successor Servicer Retained Fee") less than the full Master
Servicing Fee expressed as a fixed number of basis points such that the
Transferable Portion is reduced only to the extent reasonably necessary (in the
sole discretion of the Trustee) to provide market rate compensation (except that
the Transferable Portion shall be reduced to zero during any period for which
the Trustee serves as successor servicer hereunder by reason of a default by the
Master Servicer). If, and only if, the successor Master Servicer shall have so
agreed to perform such services for less than the full Master Servicing Fee,
then while such successor Master Servicer will be entitled to receive the full
Master Servicing Fee, it shall pay the excess of the Transferable Portion (which
would otherwise be payable) over the Successor Servicer Retained Fee on each
Distribution Date (any such excess, the "Excess Portion") to Midland or any
transferee of the Transferable Portion, as applicable, at such time and to the
extent the Master Servicer is entitled to receive payment of the Master
Servicing Fees under this Agreement, notwithstanding any termination of Midland
under this Agreement. If the successor Master Servicer shall not have agreed to
perform such services for such lesser amount, the rights of Midland or any
transferee to the Transferable Portion shall terminate. The "Transferable
Portion" of the Master Servicing Fee is the amount by which the Master Servicing
Fee exceeds the sum of (i) the Primary Servicing Fee, (ii) the Standby Fee and
(iii) the amount of the related Master Servicing Fee calculated using a rate of
.015% per annum.
(b) The Master Servicer shall be entitled to receive as additional
servicing compensation:
(i) Default Charges, assumption fees, modification fees,
charges for beneficiary statements or demands and any similar fees
(excluding Prepayment Premiums), in each case to the extent actually
paid by a Mortgagor with respect to a Mortgage Loan that is not a
Specially Serviced Mortgage Loan;
(ii) amounts collected for checks returned for insufficient
funds, to the extent actually paid by a Mortgagor with respect to any
Mortgage Loan;
(iii) any Prepayment Interest Excesses collected on the
Mortgage Loans;
(iv) interest or other income earned on deposits in the
Certificate Account, in accordance with Section 3.06(b) (but only to
the extent of the Net Investment Earnings, if any, with respect to the
Certificate Account for each Collection Period); and
(v) to the extent not required to be paid to any Mortgagor
under applicable law or under the related Mortgage, any interest or
other income earned on deposits in the Servicing Accounts maintained by
the Master Servicer;
provided that with respect to the items of additional servicing compensation set
forth in clauses (i) and (ii) above, the Master Servicer shall, in turn, pay the
amounts described therein to the related Sub-Servicer to the extent such
Sub-Servicer is entitled thereto under the applicable Sub-Servicing Agreement.
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
Sub-Servicer retained by it and the premiums for any blanket policy insuring
against hazard losses pursuant to Section 3.07(b)), 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.
(c) 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 each REO Loan. As to each Specially
Serviced Mortgage Loan and REO Loan, the Special Servicing Fee shall accrue from
time to time at the Special Servicing Fee Rate on the basis of the same
principal amount and for the same number of days respecting which any related
interest payment due on such Mortgage Loan or deemed to be due on such REO Loan
is computed under the terms of the related Mortgage Note (as such terms may be
modified at any time following the Closing Date) and applicable law. The Special
Servicing Fee with respect to any Specially Serviced Mortgage Loan or REO Loan
shall cease to accrue as of the date a Liquidation Event occurs in respect
thereof or it becomes a Corrected Mortgage Loan. Earned but unpaid Special
Servicing Fees shall be payable monthly out of general collections on the
Mortgage Loans and any REO Properties on deposit in the Certificate Account
pursuant to Section 3.05(a).
As further compensation for its activities hereunder, the Special
Servicer shall be entitled to receive the Standby Fee with respect to each
Mortgage Loan and each REO Loan. As to each Mortgage Loan and each REO Loan, the
Standby Fee shall accrue from time to time at the Standby Fee Rate on the basis
of the same principal amount and for the same number of days respecting which
any related interest payment due on such Mortgage Loan or deemed to be due on
such REO Loan is computed under the terms of the related Mortgage Note (as such
terms may be modified at any time following the Closing Date) and applicable
law. Standby Fees shall be payable monthly by the Master Servicer on a
loan-by-loan basis out of its Master Servicing Fees received with respect to
each Mortgage Loan and each REO Loan.
As further compensation for its activities hereunder, the Special
Servicer shall be entitled to receive the Workout Fee with respect to each
Corrected Mortgage Loan, unless the basis on which such Mortgage Loan became a
Corrected Mortgage Loan was the remediation of a circumstance or condition
relating to the Mortgage Loan Seller's obligation to repurchase such Mortgage
Loan pursuant to Section 2.03, in which case, if such Mortgage Loan is
repurchased within the 120-day period described in Section 2.03(a), no Workout
Fee will be payable from or based upon the receipt of, any Purchase Price paid
by the Mortgage Loan Seller in satisfaction of such repurchase obligation.
Furthermore, no Workout Fees will be payable from or based upon the receipt of
any Liquidation Proceeds paid by any Majority Certificateholder of the
Controlling Class or the Master Servicer in connection with the purchase of all
the Mortgage Loans and any REO Properties in the Trust Fund pursuant to Section
9.01 hereof. As to each Corrected Mortgage Loan, subject to the exceptions
provided for in the two preceding sentences, the Workout Fee shall be payable
from, and shall be calculated by application of the Workout Fee Rate to, each
collection of interest (other than Default Interest) and principal received on
such Mortgage Loan for so long as it remains a Corrected Mortgage Loan. The
Workout Fee with respect to any Corrected Mortgage Loan will cease to be payable
if a Servicing Transfer Event occurs with respect thereto or if the related
Mortgaged Property becomes an REO Property; provided that a new Workout Fee will
become payable if and when such Mortgage Loan again becomes a Corrected Mortgage
Loan. If the Special Servicer is terminated other than for cause or resigns in
accordance with clause (ii) of the first paragraph of Section 6.04, it shall
retain the right to receive any and all Workout Fees payable in respect of
Mortgage Loans that became Corrected Mortgage Loans during the period that it
acted as Special Servicer and were still such at the time of such termination or
resignation (and the successor Special Servicer shall not be entitled to any
portion of such Workout Fees), in each case until the Workout Fee for any such
Mortgage Loan ceases to be payable in accordance with the preceding sentence.
As further compensation for its activities hereunder, the Special
Servicer shall also be entitled to receive a Liquidation Fee with respect to
each Specially Serviced Mortgage Loan or REO Property as to which it receives
any full or discounted payoff from the related Mortgagor or any Liquidation
Proceeds (other than in connection with the purchase of any such Specially
Serviced Mortgage Loan or REO Property by the Special Servicer pursuant to
Section 3.18, by the Master Servicer or the Majority Certificateholder of the
Controlling Class pursuant to Section 3.18 or Section 9.01, or by the Mortgage
Loan Seller pursuant to Section 2.03 within 120 days of its discovery or notice
of the breach or Document Defect that gave rise to the repurchase obligation,
and other than in connection with the condemnation or other governmental taking
of a Mortgaged Property or REO Property). As to each such Specially Serviced
Mortgage Loan or REO Property, the Liquidation Fee shall be payable from, and
shall be calculated by application of the Liquidation Fee Rate to, such full or
discounted payoff and/or Liquidation Proceeds (excluding any portion of such
payoff and/or proceeds that represents accrued but unpaid Default Interest);
provided that no Liquidation Fee will be payable with respect to any such
Specially Serviced Mortgage Loan that becomes a Corrected Mortgage Loan; and
provided, further, that (without limiting the Special Servicer's right to any
Workout Fee that is properly payable therefrom), no Liquidation Fee will be
payable from, or based upon the receipt of, Liquidation Proceeds collected as a
result of any purchase of a Specially Serviced Mortgage Loan or REO Property
described in the parenthetical to the first sentence of this paragraph or in
connection with a condemnation or other governmental taking of a Mortgaged
Property or REO Property.
Notwithstanding anything to the contrary herein, a Liquidation Fee and
a Workout Fee relating to the same Mortgage Loan shall not be paid from the same
proceeds on or with respect to such Mortgage Loan.
The Special Servicer's right to receive the Special Servicing Fee, the
Standby Fee, the Workout Fee and/or the Liquidation 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.
(d) The Special Servicer shall be entitled to receive as additional
special servicing compensation:
(i) (A) to the extent allocable to the period when any
Mortgage Loan is a Specially Serviced Mortgage Loan or to the extent
allocable to an REO Loan, any Net Default Charges actually collected on
such Mortgage Loan or REO Loan, as the case may be, and (B) assumption
fees, modification fees, charges for beneficiary statements or demands
and any similar fees (excluding Prepayment Premiums) actually collected
on or with respect to Specially Serviced Mortgage Loans or REO Loans;
and
(ii) 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
the REO Account for each Collection Period).
To the extent the amounts described in clause (i)(B) of the preceding
paragraph are collected by the Master Servicer, the Master Servicer shall
promptly pay such amounts to the Special Servicer and shall not be required to
deposit such amounts in the Certificate Account pursuant to Section 3.04(a).
Additional servicing compensation to which the Master Servicer (or, if so
provided by the applicable Sub-Servicing Agreement, any Sub-Servicer retained
thereby) is entitled pursuant to Section 3.11(b) in the form of assumption fees,
modification fees, charges for beneficiary statements or demands and any similar
fees (excluding Prepayment Premiums) collected by the Special Servicer on
Mortgage Loans that are not Specially Serviced Mortgage Loans or REO Loans, or
in the form of amounts collected for checks returned for insufficient funds with
respect to any Mortgage Loans (including, without limitation, Specially Serviced
Mortgage Loans), shall be paid promptly to the Master Servicer by the Special
Servicer.
The Special Servicer shall be required to pay out of its own funds all
overhead, general and administrative expenses incurred by it in connection with
its servicing activities hereunder (including, without limitation, payment of
any amounts due and owing to any Sub-Servicers retained by it and the premiums
for any blanket policy obtained by it insuring against hazard losses pursuant to
Section 3.07(b)), if and to the extent such expenses are not payable directly
out of the Certificate Account or the REO Account and the Master Servicer is not
required to advance such expenses at the direction of the Special Servicer, and
the Special Servicer shall not be entitled to reimbursement except as expressly
provided in this Agreement.
(e) If the Master Servicer or Special Servicer is required under this
Agreement to make a Servicing Advance, but neither does so within 15 days after
such Servicing Advance is required to be made, the Trustee shall, if it has
actual knowledge of such failure on the part of the Master Servicer or Special
Servicer, as the case may be, give notice of such failure, as applicable, to the
Master Servicer and/or the Special Servicer. If such Servicing Advance is not
made by the Master Servicer or the Special Servicer within one Business Day
after such notice then (subject to Section 3.11(g) below), the Trustee shall
make such Servicing Advance. Any failure by the Master Servicer or the Special
Servicer to make a Servicing Advance it is required to make hereunder shall
constitute an Event of Default by the Master Servicer or the Special Servicer,
as the case may be, subject to and as provided in Section 7.01(a).
(f) As and to the extent permitted by Section 3.05(a), the Master
Servicer, the Special Servicer (to the extent it has not already been reimbursed
for any such Servicing Advance by the Master Servicer) and the Trustee shall
each be entitled to receive interest at the Reimbursement Rate in effect from
time to time, accrued on the amount of each Servicing Advance made thereby (out
of its own funds) for so long as such Servicing Advance is outstanding, and such
interest will be paid: first, out of any Default Charges collected on or in
respect of the related Mortgage Loan during, and allocable to, the period, if
any, that it was a Specially Serviced Mortgage Loan or an REO Loan; and second,
at any time coinciding with or following the reimbursement of such Servicing
Advance, out of general collections on the Mortgage Loans and any REO Properties
on deposit in the Certificate Account. As and to the extent provided in Sections
3.03(a) and 3.05(a), the Master Servicer shall reimburse itself, the Special
Servicer or the Trustee, as appropriate, for any Servicing Advance made thereby
as soon as practicable after funds available for such purpose are deposited in
the Certificate Account or a Servicing Account.
(g) Notwithstanding anything to the contrary set forth herein, none of
the Master Servicer, the Special Servicer or the Trustee shall be required to
make any Servicing Advance (including, without limitation, an Emergency Advance)
that it determines in its reasonable, good faith judgment would constitute a
Nonrecoverable Servicing Advance. In addition, Nonrecoverable Servicing Advances
shall be reimbursable pursuant to Section 3.05(a)(vii) out of general
collections on the Mortgage Pool on deposit in the Certificate Account. The
determination by the Master Servicer, the Special Servicer or, if applicable,
the Trustee, 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 promptly to
the Trustee (or, if applicable, retained thereby), the Depositor and the Rating
Agencies, setting forth the basis for such determination, together with (if such
determination is prior to the liquidation of the related Mortgage Loan or REO
Property) a copy of an Appraisal of the related Mortgaged Property or REO
Property, as the case may be, which shall have been performed within the twelve
months preceding such determination, and further accompanied by any other
information, including, without limitation, engineers' reports, environmental
surveys, inspection reports, rent rolls, income and expense statements or
similar reports, that the Master Servicer or the Special Servicer may have
obtained and that supports such determination. If such an Appraisal shall not
have been required and performed pursuant to the terms of this Agreement, the
Master Servicer or the Special Servicer, as the case may be, may, subject to its
reasonable and good faith determination that such Appraisal will demonstrate the
nonrecoverability of a Servicing Advance, obtain an Appraisal for such purpose
at the expense of the Trust. The Trustee shall be entitled to rely on any
determination of nonrecoverability that may have been made by the Master
Servicer or the Special Servicer with respect to a particular Servicing Advance,
and the Master Servicer shall be entitled to rely on any determination of
nonrecoverability that may have been made by the Special Servicer with respect
to a particular Servicing Advance.
(h) Notwithstanding anything to the contrary set forth herein, the
Master Servicer shall (at the direction of the Special Servicer if a Specially
Serviced Mortgage Loan or an REO Property is involved) pay directly out of the
Certificate Account any servicing expense that, if paid by the Master Servicer
or the Special Servicer, would constitute a Nonrecoverable Servicing Advance;
provided that the Master Servicer (or the Special Servicer, if a Specially
Serviced Mortgage Loan or an REO Property is involved) has determined in
accordance with the Servicing Standard that making such payment is in the best
interests of the Certificateholders (as a collective whole), as evidenced by an
Officer's Certificate delivered promptly to the Trustee, the Depositor and the
Rating Agencies, setting forth the basis for such determination and accompanied
by any information that the Master Servicer or the Special Servicer may have
obtained that supports such determination.
SECTION 3.12 Inspections; Collection of Financial Statements.
(a) Commencing in 1999, the Master Servicer shall inspect or cause the
inspection of each Mortgaged Property at least once every two years (or, if the
related Mortgage Loan has a then current balance greater than $2,000,000, at
least once every year), provided that at least 50% of the Mortgaged Properties
(by both number and aggregate Stated Principal Balances of the related Mortgage
Loans) will be inspected each year by the Master Servicer (or an entity employed
by the Master Servicer for such purpose) or, in accordance with the second
succeeding sentence, by the Special Servicer. The Master Servicer shall be
responsible for such inspections only in respect of (i) Mortgage Loans that are
not Specially Serviced Mortgage Loans and (ii) Corrected Mortgage Loans. The
Special Servicer, subject to statutory limitations or limitations set forth in
the related Mortgage Loan documents, shall perform or cause to be performed a
physical inspection of a Mortgaged Property as soon as practicable after the
servicing of the related Mortgage Loan is transferred thereto pursuant to
Section 3.21(a). The Master Servicer and the Special Servicer shall each prepare
or cause to be prepared as soon as reasonably possible a written report of each
such inspection performed or caused to be performed thereby detailing the
condition of the Mortgaged Property and specifying the existence of (i) any
vacancy in the Mortgaged Property that is, in the reasonable judgment of the
Master Servicer or Special Servicer (or their respective designees), as the case
may be, material and is evident from such inspection, (ii) any abandonment of
the Mortgaged Property, (iii) any change in the condition or value of the
Mortgaged Property that is, in the reasonable judgment of the Master Servicer or
Special Servicer (or their respective designees), as the case may be, material
and is evident from such inspection, (iv) any waste on or deferred maintenance
in respect of the Mortgaged Property that is evident from such inspection or (v)
any capital improvements made that are evident from such inspection. The Master
Servicer and Special Servicer each shall, within 10 days of the preparation
thereof, deliver to the Trustee, the Directing Certificateholder, the Rating
Agencies, each other and, upon request of a Class F, Class G, Class H, Class J
and Class K Certificateholder, such Holder, a copy of (and, upon request by any
such Person, shall promptly discuss therewith the contents of) each such written
report prepared or caused to be prepared by or on behalf of it. Furthermore, the
Master Servicer shall obtain (and shall deliver to the requesting party and the
Trustee) such additional information with respect to the matters addressed in
such written report as the Special Servicer, and/or the Directing
Certificateholder, may reasonably request and shall cooperate with and
reasonably assist the Special Servicer in making direct inquiries with any
Mortgagor to the extent any such direct inquiry by the Special Servicer would
not violate the terms of any applicable Sub-Servicing Agreement; provided that
if the Special Servicer or any such Certificateholder shall desire such an
inquiry to be made of a Mortgagor, and if the subject Mortgage Loan is then
being primary serviced by a Sub-Servicer, then the Master Servicer shall in each
instance (regardless of whether such Mortgage Loan was originated by such
Sub-Servicer), unless otherwise agreed by such Sub-Servicer, first request that
such Sub-Servicer make such inquiry (and the Master Servicer or the Special
Servicer may contact such Mortgagor directly in such instance if such request
has been so made to such Sub-Servicer and the requested information has not
thereafter been obtained by such Sub-Servicer within a reasonable time). The
Trustee shall make available to Certificateholders, Certificate Owners and
prospective Certificateholders and Certificate Owners (which prospective
Certificateholders and Certificate Owners have been certified to it as such by a
Certificateholder or a Certificate Owner), in accordance with Section 8.12(b),
copies of all the written reports delivered to it pursuant to this Section
3.12(a) and, if and to the extent delivered to it in a written or electronic
format, the related additional information referred to in the preceding
sentence. In the absence of actual knowledge that the Master Servicer or the
Special Servicer is in default under this Section 3.12(a), the Trustee shall
have no obligation to confirm that inspections of the Mortgaged Properties are
being performed in accordance with this Section 3.12(a). The preceding sentence
notwithstanding, in the event the Trustee has received, as of December 31 of any
calendar year, inspection reports with respect to less than 50% of the Mortgaged
Properties as set forth in the first sentence of this Section 3.12(a), the
Trustee shall notify the Master Servicer of such fact in writing on or before
January 31 of the immediately succeeding calendar year. The notice provided by
the Trustee to the Master Servicer of the deficiency in the number of inspection
reports provided to the Trustee, shall constitute notice "requiring the same to
be remedied" within the meaning of Section 7.01(a)(vi) hereof and shall so state
on its face. If the Master Servicer does not provide satisfactory evidence
(which shall include the presentation of the required reports) of the
performance of the number of inspections required pursuant to the first sentence
of this Section 3.12(a) within 30 days of such notice, the Master Servicer shall
be deemed to have failed duly to observe and perform in all material respects
its covenants and agreements set forth in this Section 3.12(a).
(b) The Special Servicer, in the case of the Specially Serviced
Mortgage Loans and REO Properties, and the Master Servicer, in the case of all
other Mortgage Loans, shall make reasonable efforts to collect or otherwise
obtain promptly (from the related Mortgagor in the case of a Mortgage Loan)
annual and quarterly operating statements and rent rolls of the related
Mortgaged Property or REO Property (and financial statements of the related
Mortgagor in the case of a Mortgage Loan), whether or not delivery of such items
is required pursuant to the terms of the related Mortgage. The Special Servicer,
in the case of the Specially Serviced Mortgage Loans and REO Properties, and the
Master Servicer, in the case of all other Mortgage Loans, shall promptly: (i)
review all such items as may be collected; (ii) prepare written reports based on
such reviews identifying the revenues, expenses, Net Operating Income and Debt
Service Coverage Ratios for the related Mortgage Loans and REO Loans and any
extraordinary increases or decreases in expenses or revenues associated with the
related Mortgaged Properties and REO Properties; (iii) deliver copies of the
collected items, and of the written reports prepared in respect thereof, to the
Trustee, the Directing Certificateholder, the Rating Agencies (except that DCR
shall be sent such copies only if DCR so requests), each other and, upon request
of a Class F, Class G, Class H, Class J and Class K Certificateholder, such
Holder, in each case within 45 days of its receipt or preparation, as applicable
(it being understood and agreed that with respect to Mortgage Loans (including,
without limitation, Specially Serviced Mortgage Loans) that are primary serviced
by a Sub-Servicer, such collected items shall be deemed to have been received by
the Master Servicer or the Special Servicer, as the case may be, at the same
time they are received by the applicable Sub-Servicer); and (iv) promptly upon
the request of any Person referred in the immediately preceding clause (iii), to
discuss therewith the contents of the collected items and the written reports
referred to in the immediately preceding clause (iii). Furthermore, the Master
Servicer shall obtain (and shall deliver to the requesting party and the
Trustee) such additional information with respect to the matters addressed in
the collected items and written reports referred to above as the Special
Servicer, and/or the Directing Certificateholder, and/or a Class F, Class G,
Class H, Class J and Class K Certificateholder, may reasonably request and shall
cooperate with and reasonably assist the Special Servicer in making direct
inquiries with any Mortgagor to the extent any such direct inquiry by the
Special Servicer would not violate the terms of any applicable Sub-Servicing
Agreement; provided that if the Special Servicer or any such Certificateholder
shall desire such an inquiry to be made of a Mortgagor, and if the subject
Mortgage Loan is then being primary serviced by a Sub-Servicer, then the Master
Servicer shall in each instance (regardless of whether such Mortgage Loan was
originated by such Sub-Servicer), unless otherwise agreed by such Sub-Servicer,
first request that such Sub-Servicer make such inquiry (and the Master Servicer
or the Special Servicer may contact such Mortgagor directly in such instance if
such request has been so made to such Sub-Servicer and the requested information
has not thereafter been obtained by such Sub-Servicer within a reasonable time).
The Trustee shall make available to Certificateholders, Certificate Owners and
prospective Certificateholders and Certificate Owners (which prospective
Certificateholders and Certificate Owners have been certified to it as such by a
Certificateholder or a Certificate Owner), in accordance with Section 8.12(b),
copies of all the written reports delivered to it pursuant to this Section
3.12(b) and, if and to the extent delivered to it in written or electronic
format, the related additional information referred to in the preceding
sentence. In the absence of actual knowledge that the Master Servicer or the
Special Servicer is in default under this Section 3.12(b), the Trustee shall
have no obligation to confirm that the Master Servicer or the Special Servicer
has or is attempting to collect any of the items described above in this Section
3.12(b).
SECTION 3.13 Annual Statement as to Compliance.
Each of the Master Servicer and the Special Servicer will deliver to
the Trustee and the Rating Agencies, and, upon request of a Class F, Class G,
Class H, Class J and Class K Certificateholder, such Holder, with a copy to the
Depositor, on or before April 30 of each year, beginning April 30, 1999, an
Officer's Certificate stating 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 during such calendar
year, has been made under the signing 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 in all material respects fulfilled all
of its obligations under this Agreement throughout such calendar year, or, if
there has been a material 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 the qualification or status as a REMIC of,
or otherwise asserting a tax (other than ad valorem real property taxes or other
similar taxes on REO Property) on the income or assets of, any portion of the
Trust Fund from the Internal Revenue Service or from any other governmental
agency or body or, if it has received any such notice, specifying the details
thereof. The signing officer shall have no personal liability with respect to
the content of any such statement, and the Master Servicer or the Special
Servicer, as the case may be, shall be deemed to have made such statement and
shall assume any liability resulting therefrom.
The Master Servicer and the Special Servicer, to the extent applicable,
will reasonably cooperate with the Depositor in conforming any Officer's
Certificate delivered pursuant to this Section 3.13 to requirements imposed by
the Commission on the Depositor in connection with the Commission's issuance of
a no-action letter relating to the Depositor's reporting requirements in respect
of the Trust pursuant to the Exchange Act.
SECTION 3.14 Reports by Independent Public Accountants.
On or before April 30 of each year, beginning April 30, 1999 (or, as to
any such year, such earlier date as is contemplated by the last sentence of this
paragraph), each of the Master Servicer and the Special Servicer, at its
expense, shall cause a firm of independent public accountants that is a member
of the American Institute of Certified Public Accountants to furnish a statement
to the Depositor, the Trustee, the Rating Agencies, the Directing
Certificateholder and, upon request of a Class F, Class G, Class H, Class J and
Class K Certificateholder, such Holder, to the effect that such firm has
examined such documents and records as it has deemed necessary and appropriate
relating to the Master Servicer's or the Special Servicer's, as the case may be,
servicing of the Mortgage Loans under this Agreement or the servicing of
mortgage loans similar to the Mortgage Loans under substantially similar
agreements for the preceding calendar year (or during the period from the date
of commencement of the Master Servicer's or the Special Servicer's, as the case
may be, duties hereunder until the end of such preceding calendar year in the
case of the first such certificate) and that the assertion of the management of
the Master Servicer or the Special Servicer, as the case may be, that it
maintained an effective internal control system over servicing of the Mortgage
Loans or similar mortgage loans is fairly stated in all material respects, based
upon established criteria, which statement meets the standards applicable to
accountants' reports intended for general distribution. In rendering its report
such firm may rely, as to matters relating to the direct servicing of
securitized 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 report) with respect to those Sub-Servicers.
If the Depositor notifies the Trustee, the Master Servicer and the Special
Servicer on or before March 1 of any year that such statements are required to
be filed with the Commission as part of the Form 10-K for the Trust covering the
prior calendar year, each of the Master Servicer and the Special Servicer shall
deliver such statement in respect of it by March 15 of such year.
The Master Servicer and the Special Servicer, to the extent applicable,
will reasonably cooperate with the Depositor in conforming any reports delivered
pursuant to this Section 3.14 to requirements imposed by the Commission on the
Depositor in connection with the Commission's issuance of a no-action letter
relating to the Depositor's reporting requirements in respect of the Trust
pursuant to the Exchange Act.
SECTION 3.15 Access to Certain Information.
Each of the Master Servicer and the Special Servicer shall provide or
cause to be provided to the other such party, the Depositor, the Trustee and the
Rating Agencies, and to the OTS, the FDIC, and any other federal or state
banking or insurance regulatory authority that may exercise authority over any
Certificateholder, access to any documentation regarding the Mortgage Loans and
the other assets of the Trust Fund that are 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.
SECTION 3.16 Title to REO Property; REO Account.
(a) If title to any REO Property is acquired, the deed or certificate
of sale shall be issued to the Trustee or its nominee on behalf of the
Certificateholders. The Special Servicer shall sell any REO Property by the end
of the third calendar year following the year in which the Trust 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 of such REO Property subsequent to the end of the third
calendar year following the year in which such acquisition occurred, will not
result in the imposition of taxes on "prohibited transactions" of REMIC I or
REMIC II as defined in Section 860F of the Code or cause REMIC I or REMIC II to
fail to qualify as a REMIC at any time that any 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 three years
following the year that such property was acquired, as is permitted by such REO
Extension or such Opinion of Counsel, as the case may be. Any reasonable 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 payable out of the
Certificate Account pursuant to Section 3.05(a). Any REO Extension shall be
requested by the Special Servicer no later than 60 days before the end of the
third calendar year following the year in which the Trust acquired ownership of
the related REO Property.
(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"), to be 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 and may
consist of one account for all the REO Properties. The Special Servicer shall
deposit, or cause to be deposited, in the REO Account, within two Business Days
of receipt, all REO Revenues, Liquidation Proceeds (net of all Liquidation
Expenses paid therefrom) and Insurance Proceeds received in respect of an REO
Property. The Special Servicer is authorized to pay out of related Liquidation
Proceeds any Liquidation Expenses incurred in respect of an REO Property and
outstanding at the time such proceeds are received. 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 Section
3.11(d), 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 Collection Period).
The Special Servicer shall give notice to the other parties hereto of the
location of the REO Account when first established and of the new location of
the REO Account prior to any change thereof.
(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. Within one Business Day following the end
of each Collection Period, the Special Servicer shall withdraw from the REO
Account and deposit into the Certificate Account or deliver to the Master
Servicer (which shall deposit such amounts into the Certificate Account) the
aggregate of all amounts received in respect of each REO Property during such
Collection Period, net of any withdrawals made out of such amounts pursuant to
the preceding sentence; provided that the Special Servicer may retain in the REO
Account such portion of proceeds and collections as may be necessary to maintain
a reserve of sufficient funds for the proper operation, management, maintenance
and disposition of the related REO Property (including without limitation the
creation of a reasonable reserve for repairs, replacements and necessary capital
improvements and other related expenses), such reserve not to exceed an amount
sufficient to cover such items to be incurred during the following twelve-month
period.
(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, operate and lease such REO Property for the
benefit of the Certificateholders solely for the purpose of its timely
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). Subject to
this Section 3.17, the Special Servicer may earn "net income from foreclosure
property" within the meaning of Code Section 860G(d) if it determines that
earning such income is in the best interests of Certificateholders on a net
after-tax basis as compared with net leasing such REO Property or operating such
REO Property on a different basis. In connection therewith, the Special Servicer
shall deposit or cause to be deposited on a daily basis (and in no event later
than the Business Day following receipt of such funds) in the applicable REO
Account all revenues received by it with respect to each REO Property and the
related REO Loan, and 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, leasing 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, if
applicable; and
(iv) all costs and expenses necessary to maintain and lease
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)
through (iv) above with respect to such REO Property, the Special Servicer shall
direct the Master Servicer to make (and the Master Servicer shall so make)
Servicing Advances in such amounts as are necessary for such purposes unless (as
evidenced in the manner contemplated by Section 3.11(g)) the Special Servicer or
the Master Servicer determines, in its reasonable, good faith judgment, that
such payment would be a Nonrecoverable Servicing Advance.
(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 10% 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, other than
an Independent Contractor, 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 shall be paid by the Master Servicer as a Servicing
Advance) 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.
(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:
(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;
(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; and
(vi) the appointment of such Independent Contractor will not
result in a qualification, downgrading or withdrawal of any of the
ratings then assigned to the Certificates by such Rating Agency (as
evidenced in writing or otherwise by such Rating Agency).
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.
(d) When and as necessary, the Special Servicer shall send to the
Trustee and the Master Servicer a statement prepared by the Special Servicer
setting forth the amount of net income or net loss, as determined for federal
income tax purposes, resulting from the operation and management of a trade or
business on, the furnishing or rendering of a non-customary service to the
tenants of, or the receipt of any other amount not constituting Rents from Real
Property in respect of, any REO Property in accordance with Sections 3.17(a) and
3.17(b).
SECTION 3.18 Sale of Mortgage Loans and REO Properties.
(a) The parties hereto 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 Sections 2.03 and 9.01.
(b) If the Special Servicer has determined, in its good faith and
reasonable judgment, that any Defaulted Mortgage Loan will become the subject of
a foreclosure sale or similar proceeding, and that the sale of such Mortgage
Loan under the circumstances provided in this Section 3.18(b) or in Section
3.18(c) is in accordance with the Servicing Standard, the Special Servicer shall
promptly so notify in writing the Trustee, the Master Servicer and each Rating
Agency, and the Trustee shall, within 10 days after receipt of such notice,
notify all the Certificateholders of the Controlling Class. The Majority
Certificateholder of the Controlling Class may at its option purchase from the
Trust, at a price equal to the applicable Purchase Price, any such Defaulted
Mortgage Loan. The Purchase Price for any Mortgage Loan purchased under this
paragraph (b) shall be deposited into the Certificate Account, and the Trustee,
upon receipt of an Officer's Certificate from the Master Servicer to the effect
that such deposit has been made, shall release or cause to be released to the
Certificateholder(s) effecting such purchase (or any designee thereof) the
related Mortgage File, and shall execute and deliver such instruments of
transfer or assignment, in each case without recourse, as shall be provided to
it and are reasonably necessary to vest in the Certificateholder(s) effecting
such purchase (or any designee thereof) ownership of such Mortgage Loan. In
connection with any such purchase, the Special Servicer shall deliver the
related Servicing File to the Certificateholder(s) effecting such purchase (or
any designee thereof).
(c) If the Majority Certificateholder of the Controlling Class has not
purchased any Defaulted Mortgage Loan described in the first sentence of Section
3.18(b) within 15 days of its having received notice in respect thereof pursuant
to Section 3.18(b) above, either the Special Servicer or, subject to the Special
Servicer's prior rights in such regard, the Master Servicer may at its option
purchase such Mortgage Loan from the Trust, at a price equal to the Purchase
Price. The Purchase Price for any such Mortgage Loan purchased under this
paragraph (c) shall be deposited into the Certificate Account, and the Trustee,
upon receipt of an Officer's Certificate from the Master Servicer to the effect
that such deposit has been made, shall release or cause to be released to the
Master Servicer or the Special Servicer, as applicable, the related Mortgage
File, and shall execute and deliver such instruments of transfer or assignment,
in each case without recourse, as shall be provided to it and are reasonably
necessary to vest in the Master Servicer or the Special Servicer, as applicable,
the ownership of such Mortgage Loan. In connection with any such purchase by the
Master Servicer, the Special Servicer shall deliver the related Servicing File
to the Master Servicer.
(d) The Special Servicer may offer to sell any Defaulted Mortgage Loan
not otherwise purchased pursuant to Section 3.18(b) or Section 3.18(c) above, if
and when the Special Servicer determines, consistent with the Servicing
Standard, that such a sale would be in the best economic interests of the Trust.
Such offer shall be made in a commercially reasonable manner (which, for
purposes hereof, includes an offer to sell without representation or warranty
other than customary warranties of title, loan status, condition and similar
customary matters, if liability for breach thereof is limited to recourse
against the Trust) for a period of not less than 30 days. Unless the Special
Servicer determines that acceptance of any offer would not be in the best
economic interests of the Trust, the Special Servicer shall accept the highest
cash offer received from any Person that constitutes a fair price for such
Mortgage Loan. In the absence of any offer 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 and, otherwise, in accordance with the
Servicing Standard.
The Special Servicer shall use its best efforts to solicit offers 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 offers are received
contemporaneously, highest) cash offer received from any Person that constitutes
a fair price (determined pursuant to Section 3.18(e) below) for such REO
Property. If the Special Servicer reasonably believes that it will be unable to
realize a fair price (determined pursuant to Section 3.18(e) below) for any REO
Property within the time constraints imposed by Section 3.16(a), 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 offer, regardless of from whom received.
The Special Servicer shall give the Trustee and the Master Servicer not
less than five Business Days' prior written notice of its intention to sell any
Defaulted Mortgage Loan or REO Property pursuant to this Section 3.18(d). No
Interested Person shall be obligated to submit an offer to purchase any such
Mortgage Loan or REO Property, and notwithstanding anything to the contrary
herein, neither the Trustee, in its individual capacity, nor any of its
respective Affiliates may make an offer for or purchase any Defaulted Mortgage
Loan or any REO Property pursuant hereto.
(e) Whether any cash offer constitutes a fair price for any Defaulted
Mortgage Loan or REO Property, as the case may be, for purposes of Section
3.18(d), shall be determined by the Special Servicer or, if such cash offer is
from an Interested Person, by the Trustee. In determining whether any offer
received from an Interested Person represents a fair price for any such Mortgage
Loan or REO Property, the Trustee shall be supplied with and shall rely on the
most recent Appraisal or updated Appraisal conducted in accordance with this
Agreement within the preceding 12-month period or, in the absence of any such
Appraisal, on a narrative appraisal prepared by a Qualified Appraiser, retained
by the Special Servicer. Such appraiser shall be selected by the Special
Servicer if neither the Special Servicer nor any Affiliate thereof is making an
offer with respect to a Defaulted Mortgage Loan or REO Property and shall be
selected by the Trustee if the Special Servicer or an Affiliate thereof is
making such an offer. The cost of any such narrative appraisal shall be advanced
by the Master Servicer, at the direction of the Special Servicer, and shall
constitute a Servicing Advance. When any Interested Person is among those making
an offer with respect to a Defaulted Mortgage Loan or REO Property, the Special
Servicer shall require that all offers be submitted in writing and be
accompanied by a refundable deposit of cash in an amount equal to 5% of the
offered amount. In determining whether any offer from a Person other than an
Interested Person constitutes a fair price for any such Mortgage Loan or REO
Property, the Special Servicer shall take into account (in addition to the
results of any Appraisal, updated Appraisal or narrative Appraisal that it may
have obtained pursuant to this Agreement within the prior 12 months), and in
determining whether any offer from an Interested Person constitutes a fair price
for any such Mortgage Loan or REO Property, any 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
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).
Notwithstanding the other provisions of this Section 3.18, no cash offer from
any Interested Person or any Affiliate thereof in an amount less than the
related Purchase Price shall constitute a fair price for any Defaulted Mortgage
Loan or REO Property unless such offer is the highest cash offer received and at
least two additional offers (not including the offers of Interested Persons or
any Affiliates thereof) have been received from Independent third parties
reflecting prices less than the related Purchase Price. The Purchase Price for
any Defaulted Mortgage Loan or REO Property shall in all cases be deemed a fair
price.
(f) Subject to Sections 3.18(a) through 3.18(e) 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. In connection therewith, the Special Servicer may charge
prospective offerors, and may retain, fees that approximate the Special
Servicer's actual costs in the preparation and delivery of information
pertaining to such sales or evaluating offers without obligation to deposit such
amounts into the Certificate Account. Any sale of a Defaulted Mortgage Loan or
any REO Property shall be final and without recourse to the Trustee or the Trust
(except such recourse imposed by those representations and warranties typically
given in such transactions, any prorations applied thereto and any customary
closing matters), and if such sale is consummated in accordance with the terms
of this Agreement, none of the Special Servicer, the Master Servicer or the
Trustee shall have any liability to any Certificateholder with respect to the
purchase price therefor accepted by the Special Servicer or the Trustee.
(g) Any sale of a Defaulted Mortgage Loan or any REO Property shall be
for cash only (unless, as evidenced by an Opinion of Counsel, changes in the
REMIC Provisions made subsequent to the Startup Day allow a sale for other
consideration).
(h) Notwithstanding any of the foregoing paragraphs of this Section
3.18, the Special Servicer shall not be obligated to accept the highest cash
offer if the Special Servicer determines, in accordance with the Servicing
Standard, that rejection of such offer would be in the best interests of the
Certificateholders, and the Special Servicer may accept a lower cash offer (from
any Person other than itself or an Affiliate) if it determines, in accordance
with the Servicing Standard, that acceptance of such offer would be in the best
interests of the Certificateholders (for example, if the prospective buyer
making the lower offer is more likely to perform its obligations or the terms
(other than price) offered by the prospective buyer making the lower offer are
more favorable).
SECTION 3.19 Additional Obligations of the Master Servicer and the
Special Servicer.
(a) The Master Servicer shall maintain at its Primary Servicing Office
and shall, upon reasonable advance written notice, make available during normal
business hours for review by each Rating Agency and by any Certificateholder or
Certificate Owner or any Person identified to the Master Servicer as a
prospective transferee of a Certificate or an interest therein, copies of the
Servicing Files; provided that, if the Master Servicer in its reasonable, good
faith determination believes that any item of information contained in such
Servicing Files is of a nature that it should be conveyed to all
Certificateholders at the same time, it shall, as soon as reasonably possible
following its receipt of any such item of information, disclose such item of
information to the Trustee as part of the reports to be delivered to the Trustee
by the Master Servicer pursuant to Section 4.02(b), and until the Trustee has
either disclosed such information to all Certificateholders in a Distribution
Date Statement or has properly filed such information with the Commission on
behalf of the Trust under the Exchange Act, the Master Servicer shall be
entitled to withhold such item of information from any Certificateholder or
Certificate Owner or prospective transferee of a Certificate or an interest
therein; and provided, further, that the Servicer shall not be required to make
particular items of information contained in the Servicing File for any Mortgage
Loan available to any Person if the disclosure of such particular items of
information is expressly prohibited by the provisions of any related Mortgage
Loan documents. Except as set forth in the provisos to the preceding sentence,
copies of all or any portion of any Servicing File are to be made available by
the Master Servicer upon request; however, the Master Servicer shall be
permitted to require payment of a sum sufficient to cover the reasonable
out-of-pocket costs and expenses of providing such service (other than with
respect to the Rating Agencies). The Special Servicer shall, as to each
Specially Serviced Mortgage Loan and REO Property, promptly deliver to the
Master Servicer a copy of each document or instrument added to the related
Servicing File, and the Master Servicer shall in no way be in default under this
Section 3.19(a) solely by reason of the Special Servicer's failure to do so.
In connection with providing access to or copies of the items described
in the preceding paragraph, the Master Servicer may require, unless the
Depositor directs otherwise, (a) in the case of Certificate Owners, a written
confirmation executed by the requesting Person, in form reasonably satisfactory
to the Master Servicer, generally to the effect that such Person is a beneficial
holder of Certificates and will otherwise keep such information confidential and
(b) in the case of a prospective purchaser, confirmation executed by the
requesting Person generally to the effect that such Person is a prospective
purchaser of a Certificate or an interest therein, is requesting the information
for use in evaluating a possible investment in Certificates and will otherwise
keep such information confidential. All Certificateholders, by the acceptance of
their Certificates, shall be deemed to have agreed to keep such information
confidential, except to the extent that the Depositor grants written permission
to the contrary. The Master Servicer shall not be liable for the dissemination
of information in accordance with this Section 3.19(a).
(b) Within 90 days (or within such longer period as the Master Servicer
or the Special Servicer, as applicable, is (as certified thereby to the Trustee
in writing) diligently and in good faith proceeding to obtain the Appraisal
referred to below) after the earliest of (i) the date on which any Mortgage Loan
becomes a Modified Mortgage Loan, (ii) the 60th day following the occurrence of
any uncured delinquency in Monthly Payments with respect to any Mortgage Loan,
(iii) the date on which a receiver is appointed in respect of the Mortgaged
Property securing any Mortgage Loan, (iv) the date on which the Mortgagor under
any Mortgage Loan becomes the subject of bankruptcy or insolvency proceedings,
and (v) the date on which the Mortgaged Property securing any Mortgage Loan
becomes an REO Property (each such Mortgage Loan and any related REO Loan, until
it ceases to be such in accordance with the following paragraph, a "Required
Appraisal Loan"), the Master Servicer or Special Servicer, as applicable, shall
obtain an Appraisal of the related Mortgaged Property; unless an Appraisal
thereof had previously been received within the prior twelve months. The cost of
such Appraisal shall be advanced by the Master Servicer, subject to its being
entitled to reimbursement therefor as a Servicing Advance as provided in Section
3.05(a), such Advance to be made at the direction of the Special Servicer when
the Appraisal is received by the Special Servicer. For purposes of this Section
3.19(b), an Appraisal may, in the case of any Mortgage Loan with an outstanding
principal balance of less than $2,000,000 only, consist solely of an internal
valuation performed by the Special Servicer.
With respect to each Required Appraisal Loan (unless such loan has
become a Corrected Mortgage Loan and has remained current for twelve consecutive
Monthly Payments, and no other Servicing Transfer Event has occurred with
respect thereto during such twelve months, in which case it will cease to be a
Required Appraisal Loan), the Special Servicer shall, within 30 days of each
anniversary of such loan's becoming a Required Appraisal Loan, order an update
of the prior Appraisal (the cost of which shall be advanced by the Master
Servicer as a Servicing Advance at the direction of the Special Servicer,
subject to the Master Servicer's right to reimbursement as provided in Section
3.05(a)). Based upon such Appraisal, the Special Servicer shall redetermine and
report to the Trustee and the Master Servicer the Appraisal Reduction Amount, if
any, with respect to such loan.
(c) The Master Servicer and the Special Servicer shall each deliver to
the other and to the Trustee (for inclusion in the Mortgage File), the Rating
Agencies and, upon request of a Class F, Class G, Class H, Class J, and Class K
Certificateholder, such Holder, copies of all Appraisals, environmental reports
and engineering reports (or, in each case, updates thereof) obtained with
respect to any Mortgaged Property or REO Property.
(d) No more frequently than once per calendar month, the Special
Servicer may require the Master Servicer, and the Master Servicer shall be
obligated, to reimburse the Special Servicer for any Servicing Advances made by
the Special Servicer, but not previously reimbursed (whether pursuant to Section
3.05(a), this Section 3.19(d) or otherwise) to the Special Servicer, and to pay
the Special Servicer interest thereon at the Reimbursement Rate from the date
made to, but not including, the date of reimbursement. Such reimbursement and
any accompanying payment of interest shall be made within ten (10) days of the
request therefor by wire transfer of immediately available funds to an account
designated by the Special Servicer. Upon the Master Servicer's reimbursement to
the Special Servicer of any Servicing Advance and payment to the Special
Servicer of interest thereon, all in accordance with this Section 3.19(d), the
Master Servicer shall for all purposes of this Agreement be deemed to have made
such Servicing Advance at the same time as the Special Servicer originally made
such Advance, and accordingly, the Master Servicer shall be entitled to
reimbursement for such Advance, together with Advance Interest thereon, at the
same time, in the same manner and to the same extent as the Master Servicer
would otherwise have been entitled if it had actually made such Servicing
Advance.
Notwithstanding anything to the contrary contained in this Agreement,
if the Special Servicer (i) is required under any other provision of this
Agreement to direct the Master Servicer to make a Servicing Advance or (ii) is
otherwise aware a reasonable period in advance that it is reasonably likely that
the Special Servicer will incur a cost or expense that will, when incurred,
constitute a Servicing Advance, the Special Servicer shall (in the case of
clause (i) preceding), and shall use reasonable efforts to (in the case of
clause (ii) preceding), request that the Master Servicer make such Servicing
Advance, such request to be made in writing and in a timely manner that does not
materially and adversely affect the interests of any Certificateholder and at
least five Business Days prior to the date on which failure to make such
Servicing Advance would (with notice from the Trustee regardless of whether such
notice is actually received) constitute an Event of Default pursuant to Section
7.01(a)(v); provided, however, that the Special Servicer shall have an
obligation to make any Emergency Advance or any other Servicing Advance with
respect to which it would, under the circumstances, be inconsistent with the
Servicing Standard for the Special Servicer to request that the Master Servicer
make such Servicing Advance (in lieu of making such Servicing Advance itself and
seeking reimbursement therefor as provided herein); and provided, further, that
the Special Servicer shall, with respect to Specially Serviced Mortgage Loans
and REO Properties, make any Servicing Advance that it fails to timely request
the Master Servicer to make. The Master Servicer shall have the obligation to
make any such Servicing Advance that it is requested by the Special Servicer to
make within five Business Days of the Master Servicer's receipt of such request.
Subject to the foregoing, the Special Servicer shall be relieved of any
obligations with respect to a Servicing Advance that it timely requests the
Master Servicer to make (regardless of whether or not the Master Servicer shall
make such Servicing Advance), other than an Emergency Advance or any other
Servicing Advance with respect to which it would, under the circumstances, be
inconsistent with the Servicing Standard for the Special Servicer to request
that the Master Servicer make such Servicing Advance (in lieu of making such
Servicing Advance itself and seeking reimbursement therefor as provided herein).
The Master Servicer shall be entitled to reimbursement for any Servicing Advance
made by it at the direction of the Special Servicer, together with Advance
Interest thereon, at the same time, in the same manner and to the same extent as
the Master Servicer is entitled with respect to any other Servicing Advance made
thereby.
Notwithstanding the foregoing provisions of this Section 3.19(d) or any
other provision of this Agreement to the contrary, the Master Servicer shall not
be required to reimburse the Special Servicer for, or make at the Special
Servicer's direction, any Servicing Advance if the Master Servicer determines in
its reasonable, good faith judgment that the Servicing Advance which the Special
Servicer is directing the Master Servicer to reimburse it for or make hereunder,
although not characterized by the Special Servicer as a Nonrecoverable Servicing
Advance, is or would be, if made, a Nonrecoverable Servicing Advance. The Master
Servicer shall notify the Special Servicer and the Trustee in writing of such
determination. Such notice shall not obligate the Special Servicer to make such
Servicing Advance.
(e) The Master Servicer shall deliver to the Trustee for deposit in the
Distribution Account on each Master Servicer Remittance Date, without any right
of reimbursement therefor, an amount equal to the lesser of (i) the aggregate of
all Prepayment Interest Shortfalls incurred in connection with Principal
Prepayments received in respect of the Mortgage Pool during the most recently
ended Collection Period, and (ii) that portion of its aggregate Master Servicing
Fee for the related Collection Period that is, in the case of each and every
Mortgage Loan and REO Loan, calculated at 0.015% per annum, together with the
aggregate Prepayment Interest Excesses received during such Collection Period.
(f) Except under the same circumstances that it would be permitted to
waive a prepayment lockout provision in the subject Mortgage Loan pursuant to
Section 3.20(a), neither the Master Servicer nor the Special Servicer shall
consent to any Mortgagor's prepaying its Mortgage Loan, partially or in its
entirety, if the Mortgagor would be prohibited from doing so without such
consent.
(g) The Master Servicer shall not exercise any discretionary right it
has with respect to any Mortgage Loan pursuant to the related Mortgage Note or
Mortgage to apply any amounts maintained as an escrow or reserve to the
principal balance of such Mortgage Loan except in the case of a default
thereunder.
SECTION 3.20 Modifications, Waivers, Amendments and Consents.
(a) The Master Servicer and the Special Servicer each may, consistent
with the Servicing Standard, agree to any modification, waiver or amendment of
any term of, forgive or defer the payment of interest (including, without
limitation, Default Interest) on and principal of, forgive late payment charges
and Prepayment Premiums on, permit the release, addition or substitution of
collateral securing, and/or permit the release of the Mortgagor on or any
guarantor of any Mortgage Loan it is required to service and administer
hereunder (except that any assumption with respect to a Mortgage Loan serviced
and administered by the Master Servicer must also be consented to by the Special
Servicer), without the consent of the Trustee or any Certificateholder, subject,
however, to each of the following limitations, conditions and restrictions:
(i) other than as expressly provided in Section 3.02 (with
respect to Default Charges) and Section 3.08 (with respect to
due-on-sale and due-on-encumbrance clauses), the Master Servicer shall
not agree to any modification, waiver or amendment of any term of, or
take any of the other acts referenced in this Section 3.20(a) with
respect to, any Mortgage Loan it is required to service and administer
hereunder that would affect the amount or timing of any related payment
of principal, interest or other amount payable thereunder or, in the
Master Servicer's good faith and reasonable judgment, materially impair
the security for such Mortgage Loan or reduce the likelihood of timely
payment of amounts due thereon or, to the extent required by the REMIC
Provisions, materially increase, substitute or otherwise alter the
collateral for the Mortgage Loan (other than the alteration or
construction of improvements thereon) or any guarantee or credit
enhancement contract with respect thereto (other than the substitution
of a similar commercially available credit enhancement contract); the
Special Servicer may, however, agree to any modification, waiver or
amendment of any term of, or take any of the other acts referenced in
this Section 3.20(a) with respect to, a Specially Serviced Mortgage
Loan that would have any such effect, but only if a material default on
such Mortgage Loan has occurred or, in the Special Servicer's
reasonable and good faith judgment, a default in respect of payment on
such Mortgage Loan is reasonably foreseeable, and such modification,
waiver, amendment or other action is reasonably likely to produce a
greater recovery to Certificateholders (as a collective whole) on a
present value basis (the relevant discounting of anticipated
collections that will be distributable to Certificateholders to be
performed at the related Net Mortgage Rate), than would liquidation;
(ii) the Special Servicer may not, in connection with any
particular extension, extend the maturity date of any Specially
Serviced Mortgage Loan beyond March 20, 2028;
(iii) neither the Master Servicer nor the Special Servicer
shall make or permit any modification, waiver or amendment of any term
of, referenced in this Section 3.20(a) or in Section 3.08 with respect
to, any Mortgage Loan not otherwise permitted by this Section 3.20(a)
or in Section 3.08 that would (A) be a "significant modification" of
such Mortgage Loan within the meaning of Treasury Regulations Section
1.860G-2b or (B) cause any Mortgage Loan to cease to be a "qualified
mortgage" within the meaning of Section 860G(a)(3) of the Code (and
neither the Master Servicer nor the Special Servicer shall be liable
for decisions made under this subsection which were made in good faith
and, unless it would constitute bad faith or negligence to do so, each
of the Master Servicer and the Special Servicer may rely on Opinions of
Counsel in making such decisions);
(iv) neither the Master Servicer nor the Special Servicer
shall permit any Mortgagor to add or substitute any collateral for an
outstanding Mortgage Loan, which additional or substitute collateral
constitutes real property, unless the Special Servicer shall have first
determined in accordance with the Servicing Standard, based upon a
Phase I Environmental Assessment (and such additional environmental
testing as the Special Servicer deems necessary and appropriate)
prepared by an Independent Person who regularly conducts Phase I
Environmental Assessments (and such additional environmental testing),
at the expense of the Mortgagor, that such additional or substitute
collateral is in compliance with applicable environmental laws and
regulations and that there are no circumstances or conditions present
with respect to such new collateral relating to the use, management or
disposal of any Hazardous Materials for which investigation, testing,
monitoring, containment, clean-up or remediation would be required
under any then applicable environmental laws and/or regulations; and
(v) neither the Master Servicer nor the Special Servicer shall
release any collateral securing an outstanding Mortgage Loan
(including, without limitation, as part of a substitution of
collateral), except in connection with a payment in full or, subject to
the other provisions of this Section 3.20, a discounted payoff of such
Mortgage Loan, or except as provided in Section 3.09(d), or except
where the Rating Agencies have been notified in writing and (A) either
(1) the use of the collateral to be released will not, in the Master
Servicer's or Special Servicer's, as the case may be, good faith and
reasonable judgment, materially and adversely affect the Net Operating
Income being generated by or the use of the related Mortgaged Property,
or (2) there is a corresponding principal paydown of such Mortgage Loan
in an amount at least equal to, or a delivery of substitute collateral
with an appraised value at least equal to, the appraised value of the
collateral to be released, (B) the remaining Mortgaged Property and any
substitute collateral is, in the Master Servicer's or Special
Servicer's, as the case may be, good faith and reasonable judgment,
adequate security for the remaining Mortgage Loan and (C) if the
collateral that is being released has an Appraised Value in excess of
$3,000,000, Moody's has confirmed in writing that such release and/or
substitution would not result in the downgrade, qualification or
withdrawal of the rating then assigned by Moody's to any Class of
Certificates;
(vi) without the consent of the Directing Certificateholder,
the Special Servicer shall not agree to any modification, waiver or
amendment of any term of, or take any of the other acts referenced in
this Section 3.20(a), with respect to any Specially Serviced Mortgage
Loan if such act would not be generally consistent with the Asset
Status Report approved by the Directing Certificateholder or the
Certificateholders, as applicable in accordance with Section 3.21.
provided that (1) the limitations, conditions and restrictions set forth in
clauses (i) through (vi) above shall not apply to (x) any of the acts referenced
in this Section 3.20(a) in respect of any Mortgage Loan that either occurs
automatically, or results from the exercise of a unilateral option by the
related borrower within the meaning of Treasury Regulations Section
1.1001-3(c)(2)(iii), in any event under the terms of such Mortgage Loan in
effect on the Closing Date or (y) the assumptions to take place with respect to
the Mortgage Loans relating to the Mortgaged Properties identified on the
Mortgage Loan Schedule as "The Gauntlet at Curtis Park", "Falcon House
Apartments", "Landings & Marina" and "Hidden Brooks Apartments", which
assumptions have been agreed to by the Mortgage Loan Seller, as mortgagee, but
not fully documented as of the Closing Date, and (2) notwithstanding clauses (i)
through (vi) above, neither the Master Servicer nor the Special Servicer shall
be required to oppose the confirmation of a plan in any bankruptcy or similar
proceeding involving a Mortgagor if in their reasonable and good faith judgment
such opposition would not ultimately prevent the confirmation of such plan or
one substantially similar.
(b) The Special Servicer shall have no liability to the Trust, the
Certificateholders or any other Person if its analysis and determination that
the modification, waiver, amendment or other action contemplated by Section
3.20(a) is reasonably likely to produce a greater recovery to Certificateholders
on a present value basis than would liquidation, should prove to be wrong or
incorrect, so long as the analysis and determination were made on a reasonable
basis in good faith by the Special Servicer and the Special Servicer has
complied with the Servicing Standard in ascertaining the pertinent facts. Each
such determination shall be evidenced by an Officer's Certificate to such effect
to be delivered by the Special Servicer to the Trustee.
(c) Any payment of interest, which is deferred pursuant to Section
3.20(a), shall not, for purposes hereof, including, without limitation,
calculating monthly distributions to Certificateholders, be added to the unpaid
principal balance or Stated Principal Balance of the related Mortgage Loan,
notwithstanding that the terms of such Mortgage Loan so permit or that such
interest may actually be capitalized.
(d) 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 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 it, as additional servicing compensation, a
reasonable fee relating to such consent, modification, waiver or indulgence (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, together with
any related costs and expenses incurred by it.
(e) All modifications, waivers, amendments and other actions entered
into or taken in respect of the Mortgage Loans pursuant to the preceding
subsections of this Section 3.20 shall be in writing. Each of the Master
Servicer and the Special Servicer shall notify the other such party and the
Trustee, in writing, of any modification, waiver, amendment or other action
entered into or taken in respect of any Mortgage Loan pursuant to this Section
3.20 and the date thereof, and shall deliver to the Trustee or the related
Custodian for deposit in the related Mortgage File (with a copy to the other
such party), an original counterpart of the agreement relating to such
modification, waiver, amendment or other action, promptly (and in any event
within 10 Business Days) following the execution thereof. In addition, following
the execution of any modification, waiver or amendment agreed to by the Special
Servicer pursuant to Section 3.20(a) above, the Special Servicer shall deliver
to the Master Servicer and the Trustee an Officer's Certificate setting forth in
reasonable detail the basis of the determination made by it pursuant to clause
(i) of Section 3.20(a).
SECTION 3.21 Transfer of Servicing Between Master Servicer and Special
Servicer; Record Keeping; Asset Status Report.
(a) Upon determining that a Servicing Transfer Event has occurred with
respect to any Mortgage Loan, the Master Servicer shall promptly give notice
thereof, and deliver the related Servicing File, to the Special Servicer and
shall use its best efforts to provide the Special Servicer with all information,
documents (or copies thereof) 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. The Master Servicer shall deliver to each Class F,
Class G, Class H, Class J and Class K Certificateholders that shall have
requested a copy of any such notice a copy of the notice of such Servicing
Transfer Event provided by the Master Servicer to the Special Servicer pursuant
to this Section.
Upon determining that a Specially Serviced Mortgage Loan has become a
Corrected Mortgage Loan, the Special Servicer shall promptly give notice
thereof, and return the related Servicing File, to the Master Servicer and upon
giving such notice, and returning such Servicing File, to the Master Servicer,
the Special Servicer's obligation to service such Mortgage Loan, and the Special
Servicer's right to receive the Special Servicing Fee with respect to such
Mortgage Loan, shall terminate, and the obligations of the Master Servicer to
service and administer such Mortgage Loan shall resume.
Notwithstanding other provisions in this Agreement to the contrary, the
Master Servicer shall remain responsible for the accounting, data collection,
reporting and other basic Master Servicer administrative functions with respect
to Specially Serviced Mortgage Loans, provided that the Special Servicer shall
establish procedures for the Master Servicer as to the application of receipts
and tendered payments and shall have the exclusive responsibility for and
authority over all contacts (including billing and collection) with and notices
to Mortgagors and similar matters relating to each Specially Serviced Mortgage
Loan and the related Mortgaged Property.
Also notwithstanding anything herein to the contrary, in connection
with the transfer to the Special Servicer of the servicing of a
Cross-Collateralized Mortgage Loan as a result of a Servicing Transfer Event or
the re-assumption of servicing responsibilities by the Master Servicer with
respect to any such Mortgage Loan upon its becoming a Corrected Mortgage Loan,
the Master Servicer and the Special Servicer shall each transfer to the other,
as and when applicable, the servicing of all other Cross-Collateralized Mortgage
Loans constituting part of the same Group; provided that no Cross-Collateralized
Mortgage Loan may become a Corrected Mortgage Loan at any time that a continuing
Servicing Transfer Event exists with respect to another Cross-Collateralized
Mortgage Loan in the same Group.
(b) In servicing any Specially Serviced Mortgage Loans, the Special
Servicer shall provide to the Trustee originals of documents contemplated by the
definition of "Mortgage File" and generated while such Mortgage Loan is a
Specially Serviced Mortgage Loan, for inclusion in the related Mortgage File
(with a copy of each such original to the Master Servicer), and copies of any
additional related Mortgage Loan information, including correspondence with the
related Mortgagor generated while such Mortgage Loan is a Specially Serviced
Mortgage Loan.
(c) Notwithstanding anything in this Agreement to the contrary, in the
event that the Master Servicer and the Special Servicer are the same Person, all
notices, certificates, information, consents and documents required to be given
or delivered by the Master Servicer to the Special Servicer or vice versa shall
be deemed to be given or delivered, as the case may be, without the necessity of
any action on such Person's part.
(d) No later than thirty (30) days after a Servicing Transfer Event for
a Mortgage Loan, the Special Servicer shall deliver to each Rating Agency, the
Master Servicer, the Trustee and the Directing Certificateholder a report (the
"Asset Status Report") with respect to such Mortgage Loan and the related
Mortgaged Property. Such Asset Status Report shall set forth the following
information to the extent reasonably determinable:
(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 (including
without limitation by reason of any Phase I Environmental Assessment
and any additional environmental testing contemplated by Section
3.09(c)), 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 Status Report,
the Directing Certificateholder does not disapprove such Asset Status Report in
writing, the Special Servicer shall implement the recommended action as outlined
in such Asset Status 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 Status Report, the Special Servicer will revise such
Asset Status Report and deliver to the Directing Certificateholder, the Rating
Agencies, the Trustee and the Master Servicer a new Asset Status Report as soon
as practicable, but no later than thirty (30) days after such disapproval. The
Special Servicer shall revise such Asset Status Report as described above in
this Section 3.21(e) until the Directing Certificateholder shall fail to
disapprove such revised Asset Status Report in writing within ten (10) Business
Days of receiving such revised Asset Status Report or until the Special Servicer
makes one of the determinations described below. The Special Servicer may, from
time to time, modify any Asset Status 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) shall following the occurrence of an
extraordinary event with respect to the related Mortgaged Property, take any
action set forth in such Asset Status 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 request a vote by all Certificateholders, but shall in any event take the
recommended action after making such determination. To accomplish such vote, the
Special Servicer shall notify the Trustee of such request and deliver to the
Trustee a proposed notice to Certificateholders which shall include a copy of
the Asset Status 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 Status Report, the Special Servicer shall implement the
same. If the Asset Status Report is rejected by the Certificateholders, the
Special Servicer shall revise such Asset Status Report as described above in
Section 3.21(e). The Trustee shall be entitled to reimbursement from the Trust
Fund for the reasonable expenses of providing such notices.
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 Status Report. The
Special Servicer shall not take any action inconsistent with the related Asset
Status Report, unless such action would be required in order to act in
accordance with the Servicing Standards.
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, with the consent of the Depositor, the
Special Servicer, may each enter into Sub-Servicing Agreements to provide for
the performance by third parties of any or all of its obligations hereunder,
provided that, in each case, the Sub-Servicing Agreement: (i) is not
inconsistent with this Agreement; (ii) expressly or effectively provides that if
the Master Servicer or 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), any successor to the Master Servicer or the
Special Servicer, as the case may be, hereunder (including the Trustee if the
Trustee has become such successor pursuant to Section 7.02) may thereupon either
assume all of the rights and, except to the extent they arose prior to the date
of assumption, obligations of the Master Servicer or Special Servicer, as the
case may be, under such agreement or, subject to the provisions of Section
3.22(d), terminate such rights and obligations, in either case without payment
of any fee except as set forth in Section 3.22(d); (iii) in the case of a
Sub-Servicing Agreement entered into by the Master Servicer, expressly or
effectively provides that such agreement shall be suspended with respect to any
Mortgage Loan serviced thereunder at the time such Mortgage Loan becomes a
Specially Serviced Mortgage Loan (but only until such time as such Mortgage Loan
becomes a Corrected Mortgage Loan) and, except as set forth in Section 3.22(d),
the Sub-Servicer shall not receive or accrue an entitlement to any sub-servicing
compensation in respect of a Specially Serviced Mortgage Loan or an REO Loan;
(iv) in the case of a Sub-Servicing Agreement entered into by the Special
Servicer, relates only to Specially Serviced Mortgage Loans or REO Properties
and expressly or effectively provides that such agreement shall terminate with
respect to any such Mortgage Loan that becomes a Corrected Mortgage Loan; and
(v) in the case of a Sub-Servicing Agreement entered into by the Master
Servicer, provides that the related Sub-Servicer shall comply with all
reasonable requests for additional information made by the Master Servicer and,
further, provides that the failure of the related Sub-Servicer to furnish the
Master Servicer on a timely basis with any required reports, statements or other
information, including without limitation, the reports referred to in Section
3.12, either (A) shall permit the Master Servicer to make necessary inquiries of
the related borrower directly or (B) shall (subject to a cure period not to
exceed 60 days) constitute an event of default thereunder for which the Master
Servicer may terminate such Sub-Servicer without payment of any termination fee
(it being understood that notwithstanding anything to the contrary in this
clause (v), the obligations of a Sub-Servicer in respect of the second sentence
of Section 3.12(b) hereof may be limited to the provision of reports as agreed
between the Master Servicer and such Sub-Servicer and response to reasonable
inquiries from the Master Servicer with respect thereto). References in this
Agreement to actions taken or to be taken by the Master Servicer or the Special
Servicer, as the case may be, 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 or the Special
Servicer, as the case may be, hereunder to make Advances shall be deemed to have
been advanced by the Master Servicer or the Special Servicer, as the case may
be, out of its own funds and, accordingly, such 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 or the Special Servicer, as the case may
be, and, for so long as they are outstanding, such Advances shall accrue
interest in accordance with Section 3.11(f) and/or Section 4.03(d), such
interest to be allocable between the Master Servicer or the Special Servicer, as
the case may be, and such Sub-Servicer as they may agree. 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, and 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; provided that the foregoing requirements set forth in this sentence
shall not apply in the case of the Sub-Servicing Agreements in effect as of the
Closing Date that are listed on Schedule II hereto or in the case of the
Sub-Servicers thereunder.
(b) Each Sub-Servicer (i) shall be authorized to transact business in
the state or states in which the Mortgaged Properties for the Mortgage Loans it
is to service are situated, if and to the extent required by applicable law, and
(ii) shall be an approved conventional seller/servicer of multifamily mortgage
loans for Freddie Mac or Fannie Mae or a HUD-Approved Servicer.
(c) 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) each monitor the performance and enforce the
obligations of its Sub-Servicers under the related Sub-Servicing Agreements.
Such enforcement, including, without limitation, the legal prosecution of
claims, termination of Sub-Servicing Agreements in accordance with their
respective terms and the terms of this Agreement, 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 the case may
be, in its good faith business judgment, would require were it the owner of the
Mortgage Loans. Promptly upon becoming aware of a default under any
Sub-Servicing Agreement to which it is a party, the Master Servicer or the
Special Servicer, as the case may be, shall notify the other such party and the
Trustee, and each Class F, Class G, Class H, Class J and Class K
Certificateholder that shall have requested notice of any such default.
(d) With respect to the Sub-Servicing Agreements in effect as of the
Closing Date that are listed on Schedule II hereto, the initial Master Servicer
hereby agrees that it shall not, in its capacity as Master Servicer, terminate
any Sub-Servicer thereunder without cause. In the event of the resignation,
removal or other termination of the initial Master Servicer (or any successor
Master Servicer) hereunder for any reason, the successor to the initial Master
Servicer (or to such successor Master Servicer) shall elect, with respect to any
Sub-Servicing Agreement existing at the time of such termination (i) to assume
the rights and obligations of the predecessor Master Servicer under such
Sub-Servicing Agreement and continue the sub-servicing arrangements thereunder
on the same terms (including without limitation the obligation to pay the same
sub-servicing fee), (ii) to enter into a new Sub-Servicing Agreement with such
Sub-Servicer and on such terms as the new Master Servicer and such Sub-Servicer
shall mutually agree (it being understood that such Sub-Servicer is under no
obligation to accept any such new Sub-Servicing Agreement or to enter into or
continue negotiations with the new Master Servicer) or (iii) to terminate such
Sub-Servicing Agreement without cause, provided that no Sub-Servicer may be
terminated without cause unless it receives Sub-Servicer Termination
Compensation. For purposes hereof, a Sub-Servicer shall receive "Sub-Servicer
Termination Compensation" if any successor Master Servicer elects to terminate
such Sub-Servicer without cause, in which case either of the following shall
occur: (i) such successor Master Servicer shall pay to such Sub-Servicer a fee
(a "Sub-Servicer Termination Fee") in an amount equal to two times the product
of (A) the Primary Servicing Fee Rate in effect under such Sub-Servicing
Agreement at the time of such Sub-Servicer's termination and (B) the
then-current outstanding principal balance of the Mortgage Loans serviced by
such Sub-Servicer or (ii) such successor Master Servicer shall agree to pay such
Sub-Servicer an interest-only strip (the "Termination Strip") out of its related
Master Servicing Fees for each Mortgage Loan serviced by such Sub-Servicer at
the time of such Sub-Servicer's termination (such strip to be calculated in the
same manner as the related Master Servicing Fees, but at a per annum rate equal
to the applicable Primary Servicing Fee Rate minus 0.04%). Any subsequent
successor Master Servicer shall be obligated to pay any such Termination Strip
agreed to by a predecessor Master Servicer. Nothing in the foregoing provisions
of this Section 3.22(d) shall limit the ability of the initial or a successor
Master Servicer to terminate a Sub-Servicer at any time for cause; provided,
however, that the parties hereto understand and agree that the refusal or
failure of a Sub-Servicer to enter into or continue negotiations with a
successor Master Servicer concerning a new Sub-Servicing Agreement shall not
constitute cause for termination. It shall be the corporate obligation (not
reimbursable by the Trust or any of the other parties to this Agreement) of the
Person, who as successor Master Servicer, terminates any Sub-Servicer without
cause, and of its successors and assigns in such capacity (to the extent
contemplated by the second preceding sentence), to pay Sub-Servicer Termination
Compensation to such terminated Sub-Servicer. References in this Section 3.22(d)
to Master Servicer, successor Master Servicer or subsequent successor Master
Servicer shall mean the Trustee, if it is then Master Servicer, successor Master
Servicer or subsequent Master Servicer pursuant to the operation of Section
7.02.
(e) 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 the
case may be, 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 its best efforts to effect the orderly and efficient transfer of
the Sub-Servicing Agreement to the assuming party.
(f) Notwithstanding any Sub-Servicing Agreement, the Master Servicer
and the Special Servicer shall each remain obligated and liable to the Trustee
and the Certificateholders for the performance of its 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 it alone were servicing and
administering the Mortgage Loans for which it is responsible.
SECTION 3.23 Designation of Special Servicer by the Majority
Certificateholder of the Controlling Class.
The Majority Certificateholder of the Controlling Class may at any time
and from time to time replace any existing Special Servicer or any Special
Servicer that has resigned or otherwise ceased to serve as Special Servicer.
Such Majority Certificateholder shall so designate a Person to so serve by the
delivery to the Trustee of a written notice stating such designation, subject to
the approval of the Trustee, which approval shall not be unreasonably withheld.
The Trustee shall, promptly after receiving any such notice, so notify the
Rating Agencies. If the Trustee approves the designated Person (based upon the
servicing qualifications and financial condition of such designated Person) as a
replacement Special Servicer, which approval shall not be unreasonably withheld,
the designated Person shall become the Special Servicer as of the date the
Trustee shall have received: (i) written confirmation from each Rating Agency
stating that if the designated Person were to serve as Special Servicer
hereunder, none of the then-current ratings assigned by such Rating Agency to
the respective Classes of the Certificates would be qualified, downgraded or
withdrawn as a result thereof; (ii) a written acceptance of all obligations of
the Special Servicer under this Agreement, executed by the designated Person;
and (iii) an Opinion of Counsel (at the expense of the Person designated to
become the Special Servicer or at the expense of the Majority Certificateholder
that made the designation) to the effect that the designation of such Person to
serve as Special Servicer is in compliance with this Section 3.23, that upon the
execution and delivery of the written acceptance referred to in the immediately
preceding clause (ii), the designated Person shall be bound by the terms of this
Agreement and that this Agreement shall be enforceable against the designated
Person in accordance with its terms. The existing Special Servicer shall be
deemed to have resigned simultaneously with such designated Person's becoming
the Special Servicer hereunder; provided, however, that (i) the terminated
Special Servicer shall continue to be entitled to receive all amounts accrued or
owing to it under this Agreement on or prior to the effective date of such
resignation, whether in respect of Servicing Advances or otherwise, (ii) if it
was terminated without cause, it shall be entitled to a portion of certain
Workout Fees thereafter received on the Corrected Mortgage Loans (but only if
and to the extent permitted by Section 3.11(c)), and (iii) it and its directors,
officers, employees and agents shall continue to be entitled to the benefits of
Section 6.03, notwithstanding any such resignation. Such terminated Special
Servicer shall cooperate with the Trustee and the replacement Special Servicer
in effecting the termination of its responsibilities and rights hereunder,
including, without limitation, the transfer within two Business Days to the
replacement Special Servicer for administration by it of all cash amounts that
shall at the time be or should have been credited by the terminated Special
Servicer to the REO Account or delivered to the Master Servicer or that are
thereafter received by the terminated Special Servicer with respect to Specially
Serviced Mortgage Loans and REO Properties.
SECTION 3.24 Confidentiality.
The Master Servicer and the Special Servicer shall each keep
confidential and shall not disclose to any Person other than each other, the
Depositor, the Trustee and the Rating Agencies, without the related
Sub-Servicer's prior written consent, any information which it obtains in its
capacity as Master Servicer or Special Servicer with regard to the Sub-Servicer
(other than the name of the Sub-Servicer) or the Mortgage Loans or any related
Mortgagor including, without limitation, credit information with respect to any
such Mortgagor (collectively, "Confidential Information"), except (i) to the
extent that it is appropriate for the Master Servicer to do so in working with
legal counsel, auditors, taxing authorities or other governmental authorities,
(ii) to the extent required by this Agreement or any Sub-Servicing Agreement,
(iii) to the extent such information is otherwise publicly available, (iv) to
the extent such disclosure is required by law or (v) to the extent such
information is required to be delivered to third parties (including, without
limitation, property inspectors, tax service companies, insurance carriers, and
data systems vendors) in connection with the performance of the Master
Servicer's or the Special Servicer's obligations hereunder. For purposes of this
paragraph, the terms "Master Servicer" and "Special Servicer" shall mean the
divisions or departments of such corporate entities involved in providing
services hereunder and their respective officers, directors and employees, and
shall not include any other divisions or departments, or any Affiliates, of the
Master Servicer or Special Servicer (including without limitation any investor
in any of the Certificates and any such division, department or Affiliate
engaged in the origination of, or investment in, commercial or multifamily
mortgage loans), all of which shall be regarded as Persons not entitled to
Confidential Information.
SECTION 3.25 No Solicitation of Prepayments.
Neither the Master Servicer nor the Special Servicer shall solicit or
permit any Affiliate to solicit, either directly or indirectly, prepayments from
any Mortgagors under the Mortgage Loans; provided however, that the foregoing
restriction shall not be interpreted to prohibit such solicitation by a division
or department of, or an Affiliate of, the Master Servicer or the Special
Servicer if such solicitation occurs incidentally in the normal course of
business and such solicitation is not conducted, in whole or in part, (i) by an
individual engaged at any time in activities relating to the servicing of
Mortgage Loans or (ii) based upon or otherwise with the benefit of any
information obtained by or through the Master Servicer or Special Servicer or
from documentation relating to the Certificates, including without limitation
any listing of the Mortgage Loans or related Mortgagors or Mortgaged Properties.
Each Sub-Servicing Agreement shall contain a provision identical to the
foregoing with respect to the related Sub-Servicer.
<PAGE>
ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS AND RELATED MATTERS
SECTION 4.01 Distributions on the Certificates.
(a) (i) On each Distribution Date, amounts held in the Distribution
Account shall be withdrawn (to the extent of the Available Distribution Amount)
in the case of all Classes of REMIC I Regular Interests and distributed on the
REMIC I Regular Interests as follows:
(1) amounts distributable as interest to the Class A-1, Class A-2 and
Class A-3 Certificates pursuant to Section 4.01(b)(i) shall be
allocated 0.01% to the corresponding REMIC I Regular Interests
and 99.99% to the Class LWAC-1 Uncertificated Interest;
(2) amounts distributable as principal to the Class A-1, Class A-2
and Class A-3 Certificates pursuant to Section 4.01(b)(ii) or the
proviso to Section 4.01(b) shall be allocated 0.01% to the
corresponding REMIC I Regular Interests and 99.99% to the Class
LWAC-1 Uncertificated Interest;
(3) amounts distributable for unreimbursed amounts of Realized Losses
and Additional Trust Fund Expenses previously allocated to the
Class A-1, Class A-2 and Class A-3 Certificates pursuant to
Section 4.01(b)(iii) shall be allocated 0.01% to the
corresponding REMIC I Regular Interests and 99.99% to the Class
LWAC-1 Uncertificated Interest;
(4) amounts distributable as interest to the Class B, Class C, Class
D, Class E, Class F, Class G, Class H, Class J and Class K
Certificates pursuant to Section 4.01(b)(iv), (vii), (x), (xiii),
(xvi), (xix), (xxii), (xxv) and (xxviii) shall be allocated 0.01%
to the corresponding REMIC I Regular Interests and 99.99% to the
Class LWAC-2 Uncertificated Interest;
(5) amounts distributable as principal to the Class B, Class C, Class
D, Class E, Class F, Class G, Class H, Class J and Class K
Certificates pursuant to Section 4.01(b)(v), (viii), (xi), (xiv),
(xvii), (xx), (xxiii), (xxvi) and (xxxix) shall be allocated
0.01% to the corresponding REMIC I Regular Interests and 99.99%
to the Class LWAC-2 Uncertificated Interest;
(6) amounts distributable for unreimbursed amounts of Realized Losses
and Additional Trust Fund Expenses previously allocated to the
Class B, Class C, Class D, Class E, Class F, Class G, Class H,
Class J and Class K Certificates pursuant to Section 4.01(b)(vi),
(ix), (xii), (xv), (xviii), (xxi), (xxiv), (xxvii) and (xxx)
shall be allocated 0.01% to the corresponding REMIC I Regular
Interests and 99.99% to the Class LWAC-2 Uncertificated Interest;
(7) amounts distributable as interest to the Class X-1 Certificates
pursuant to Section 4.01(b)(i) or Section 4.01(b)(ii) shall be
allocated 100.00% to the Class LWAC-1 Uncertificated Interest.
(8) amounts distributable as interest to the Class X-2 Certificates
pursuant to Section 4.01(b)(i) or Section 4.01(b)(ii) shall be
allocated 100.00% to the Class LWAC-2 Uncertificated Interest.
(ii) The amounts distributable pursuant to clauses (i)(1) through (8)
above constitute the "REMIC I Distribution Amount." Subject to the penultimate
paragraph of Section 4.01(b), any amount that remains in the Distribution
Account on each Distribution Date after distribution of the REMIC I Distribution
Amount and Prepayment Premiums allocable to the REMIC Regular Interests pursuant
to Section 4.01(d)(ii) shall be distributed to the Holders of the Class R-I
Certificates (but only to the extent of the Available Distribution Amount for
such Distribution Date remaining in the Distribution Account, if any).
(b) On each Distribution Date, to the extent of the Available
Distribution Amount for such Distribution Date, the Trustee shall transfer the
REMIC I Distribution Amount from the Distribution Account to the REMIC II
Distribution Account in the amounts set forth in Section 4.01(a)(i) with respect
to each Class of REMIC I Regular Interest, and immediately thereafter, shall
make distributions thereof from the REMIC II Distribution Account in the order
of priority set forth in clauses (i) through (xxxi) below, satisfying in full,
to the extent required and possible, each priority before making any
distribution with respect to any succeeding priority.
(i) to distributions of interest to the Holders of the Class
A-1 Certificates, the Holders of the Class A-2 Certificates, the
Holders of the Class A-3 Certificates, the Holders of the Class X-1
Certificates and the Holders of the Class X-2 Certificates, pro rata in
accordance with the respective amounts of Distributable Certificate
Interest payable in respect of such Classes of Certificates described
in this clause (i), in an amount equal to all Distributable Certificate
Interest in respect of each such Class of Certificates for such
Distribution Date and, to the extent not previously paid, for all prior
Distribution Dates;
(ii) to distributions of principal, first to the Holders of
the Class A-1 Certificates, second to the Holders of the Class A-2
Certificates and third to the Holders of the Class A-3 Certificates, in
each case, in an amount (not to exceed the Class Principal Balance of
such Class of Certificates outstanding immediately prior to such
Distribution Date) equal to the entire remaining Principal Distribution
Amount for such Distribution Date;
(iii) to distributions to the Holders of the Class A-1
Certificates, the Holders of the Class A-2 Certificates and the Holders
of the Class A-3 Certificates, pro rata in accordance with the
respective amounts of previously allocated Realized Losses and
Additional Trust Fund Expenses reimbursable in respect of such Classes
of Certificates described in this clause (iii), in an amount equal to,
and in reimbursement of, all Realized Losses and Additional Trust Fund
Expenses, if any, that were previously allocated to the Class Principal
Balances of each such Class of Certificates and that remain
unreimbursed immediately prior to such Distribution Date;
(iv) to distributions of interest to the Holders of the Class
B Certificates in an amount equal to all Distributable Certificate
Interest in respect of such Class of Certificates for such Distribution
Date and, to the extent not previously paid, for all prior Distribution
Dates;
(v) if the Class Principal Balances of the Class A-1, Class
A-2 and Class A-3 Certificates have been reduced to zero, to
distributions of principal to the Holders of the Class B Certificates,
in an amount (not to exceed the Class Principal Balance of the Class B
Certificates outstanding immediately prior to such Distribution Date)
equal to the entire remaining Principal Distribution Amount for such
Distribution Date;
(vi) to distributions to the Holders of the Class B
Certificates, in an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any, that were
previously allocated to the Class Principal Balance of the Class B
Certificates and that remain unreimbursed immediately prior to such
Distribution Date;
(vii) to distributions of interest to the Holders of the Class
C Certificates, in an amount equal to all Distributable Certificate
Interest in respect of such Class of Certificates for such Distribution
Date and, to the extent not previously paid, for all prior Distribution
Dates;
(viii) if the Class Principal Balances of the Class A-1, Class
A-2, Class A-3 and Class B Certificates have been reduced to zero, to
distributions of principal to the Holders of the Class C Certificates,
in an amount (not to exceed the Class Principal Balance of the Class C
Certificates outstanding immediately prior to such Distribution Date)
equal to the entire remaining Principal Distribution Amount for such
Distribution Date;
(ix) to distributions to the Holders of the Class C
Certificates, in an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any, that were
previously allocated to the Class Principal Balance of the Class C
Certificates and that remain unreimbursed immediately prior to such
Distribution Date;
(x) to distributions of interest to the Holders of the Class D
Certificates, in an amount equal to all Distributable Certificate
Interest in respect of such Class of Certificates for such Distribution
Date and, to the extent not previously paid, for all prior Distribution
Dates;
(xi) if the Class Principal Balances of the Class A-1, Class
A-2, Class A-3, Class B and Class C Certificates have been reduced to
zero, to distributions of principal to the Holders of the Class D
Certificates, in an amount (not to exceed the Class Principal Balance
of the Class D Certificates outstanding immediately prior to such
Distribution Date) equal to the entire remaining Principal Distribution
Amount for such Distribution Date;
(xii) to distributions to the Holders of the Class D
Certificates, in an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any, that were
previously allocated to the Class Principal Balance of the Class D
Certificates and that remain unreimbursed immediately prior to such
Distribution Date;
(xiii) to distributions of interest to the Holders of the
Class E Certificates, in an amount equal to all Distributable
Certificate Interest in respect of such Class of Certificates for such
Distribution Date and, to the extent not previously paid, for all prior
Distribution Dates;
(xiv) if the Class Principal 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 distributions of principal to the Holders of the
Class E Certificates, in an amount (not to exceed the Class Principal
Balance of the Class E Certificates outstanding immediately prior to
such Distribution Date) equal to the entire remaining Principal
Distribution Amount for such Distribution Date;
(xv) to distributions to the Holders of the Class E
Certificates, in an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any, that were
previously allocated to the Class Principal Balance of the Class E
Certificates and that remain unreimbursed immediately prior to such
Distribution Date;
(xvi) to distributions of interest to the Holders of the Class
F Certificates, in an amount equal to all Distributable Certificate
Interest in respect of such Class of Certificates for such Distribution
Date and, to the extent not previously paid, for all prior Distribution
Dates;
(xvii) if the Class Principal 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 distributions of principal to the Holders of
the Class F Certificates, in an amount (not to exceed the Class
Principal Balance of the Class F Certificates outstanding immediately
prior to such Distribution Date) equal to the entire remaining
Principal Distribution Amount for such Distribution Date;
(xviii) to distributions to the Holders of the Class F
Certificates, in an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any, that were
previously allocated to the Class Principal Balance of the Class F
Certificates and that remain unreimbursed immediately prior to such
Distribution Date;
(xix) to distributions of interest to the Holders of the Class
G Certificates, in an amount equal to all Distributable Certificate
Interest in respect of such Class of Certificates for such Distribution
Date and, to the extent not previously paid, for all prior Distribution
Dates;
(xx) if the Class Principal 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 distributions of principal
to the Holders of the Class G Certificates, in an amount (not to exceed
the Class Principal Balance of the Class G Certificates outstanding
immediately prior to such Distribution Date) equal to the entire
remaining Principal Distribution Amount for such Distribution Date;
(xxi) to distributions to the Holders of the Class G
Certificates, in an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any, that were
previously allocated to the Class Principal Balance of the Class G
Certificates and that remain unreimbursed immediately prior to such
Distribution Date;
(xxii) to distributions of interest to the Holders of the
Class H Certificates, in an amount equal to all Distributable
Certificate Interest in respect of such Class of Certificates for such
Distribution Date and, to the extent not previously paid, for all prior
Distribution Dates;
(xxiii) if the Class Principal 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 distributions of
principal to the Holders of the Class H Certificates, in an amount (not
to exceed the Class Principal Balance of the Class H Certificates
outstanding immediately prior to such Distribution Date) equal to the
entire remaining Principal Distribution Amount for such Distribution
Date;
(xxiv) to distributions to the Holders of the Class H
Certificates, in an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any, that were
previously allocated to the Class Principal Balance of the Class H
Certificates and that remain unreimbursed immediately prior to such
Distribution Date;
(xxv) to distributions of interest to the Holders of the Class
J Certificates, in an amount equal to all Distributable Certificate
Interest in respect of such Class of Certificates for such Distribution
Date and, to the extent not previously paid, for all prior Distribution
Dates;
(xxvi) if the Class Principal 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 distributions of
principal to the Holders of the Class J Certificates, in an amount (not
to exceed the Class Principal Balance of the Class J Certificates
outstanding immediately prior to such Distribution Date) equal to the
entire remaining Principal Distribution Amount for such Distribution
Date;
(xxvii) to distributions to the Holders of the Class J
Certificates, in an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any, that were
previously allocated to the Class Principal Balance of the Class J
Certificates and that remain unreimbursed immediately prior to such
Distribution Date;
(xxviii) to distributions of interest to the Holders of the
Class K Certificates, in an amount equal to all Distributable
Certificate Interest in respect of such Class of Certificates for such
Distribution Date and, to the extent not previously paid, for all prior
Distribution Dates;
(xxix) if the Class Principal Balances 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 J Certificates have been reduced to zero, to
distributions of principal to the Holders of the Class K Certificates,
in an amount (not to exceed the Class Principal Balance of the Class K
Certificates outstanding immediately prior to such Distribution Date)
equal to the entire remaining Principal Distribution Amount for such
Distribution Date;
(xxx) to distributions to the Holders of the Class K
Certificates, in an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any, that were
previously allocated to the Class Principal Balance of the Class K
Certificates and that remain unreimbursed immediately prior to such
Distribution Date; and
(xxxi) to distributions to the Holders of the Class R-I
Certificates, in an amount equal to the balance, if any, of the
Available Distribution Amount for such Distribution Date remaining
after the distributions to be made on such Distribution Date pursuant
to clauses (i) through (xxx) above;
provided that, on each Distribution Date coinciding with or following the Senior
Principal Distribution Cross-Over Date, and in any event on the Final
Distribution Date, the payments of principal to be made pursuant to clause (ii)
above, will be so made to the Holders of the respective Classes of Class A
Certificates, subject to available funds, up to an amount equal to, and pro rata
as among such Classes in accordance with, the respective then outstanding Class
Principal Balances of such Classes of Certificates, and without regard to the
Principal Distribution Amount for such date; and provided, further, that, on the
Final Distribution Date, the payments of principal to be made pursuant to any of
clauses (v), (viii), (xi), (xiv), (xvii), (xx), (xxiii), (xxvi) and (xxix) above
with respect to any Class of Sequential Pay Certificates, will be so made to the
Holders thereof, subject to available funds, up to an amount equal to the entire
then outstanding Class Principal Balance of such Class of Certificates, and
without regard to the Principal Distribution Amount for such date. References to
"remaining Principal Distribution Amount" in clause (ii) above, in connection
with payments of principal to be made to the Holders of any Class of Class A
Certificates, shall be to the Principal Distribution Amount for such
Distribution Date, net of any distributions of principal made in respect thereof
to the Holders of each other Class of Class A Certificates, if any, that
pursuant to clause (ii) above has an earlier right to payment with respect
thereto. References to "remaining Principal Distribution Amount" in any of
clauses (v), (viii), (xi), (xiv), (xvii), (xx), (xxiii), (xxvi) and (xxix)
above, in connection with the payments of principal to be made to the Holders of
any Class of Sequential Pay Certificates, shall be to the Principal Distribution
Amount for such Distribution Date, net of any payments of principal made in
respect thereof to the Holders of each other Class of Sequential Pay
Certificates that has a higher Payment Priority.
(c) The initial principal amounts, the amounts of principal of, and
interest rates on, each Class of REMIC I Regular Interests shall be derived from
the principal and interest on the Classes of REMIC II Regular Certificates in
the manner set forth in the following table:
REMIC I Initial REMIC I
Regular Uncertificated Uncertificated Remittance
Interest Principal Balance Principal Balance(1) Rate
- -------- ----------------- -------------------- ----
Class LA-1 $ 19,901.7108 0.01% x A-1 6.484%
Class LA-2 $ 8,164.8044 0.01% x A-2 6.425%
Class LA-3 $ 43,375.5237 0.01% x A-3 6.395%
Class LB $ 5,358.1529 0.01% x B 6.436%
Class LC $ 5,613.3030 0.01% x C 6.648%
Class LD $ 4,847.8526 0.01% x D 6.803%
Class LE $ 2,551.5013 0.01% x E 7.300%
Class LF $ 5,103.0027 0.01% x F 7.050%
Class LG $ 1,020.6005 0.01% x G 5.000%
Class LH $ 2,551.5013 0.01% xH 5.000%
Class LJ $ 1,224.7206 0.01% xJ 5.000%
Class LK $ 2,347.3819 0.01% xK 5.000%
Class LWAC-1 $714,277,512.1053 99.99% x UPB-1(3) (3)
Class LWAC-2 $306,118,936.0449 99.99% x UPB-2(4) (3)
(1) The designations A-1, A-2, A-3, B, C, D, E, F, G, H, J and K in this
column refer to 100% of the Certificate Principal 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, Class J and Class K Certificates, respectively, as of
any applicable date.
(2) The Class LWAC-1 Uncertificated Interest has a Uncertificated Principal
Balance equal to 99.99% of UPB-1. As of any Distribution Date, the
"UPB-1" is equal to the aggregate Certificate Principal Balance of the
Class A Certificates 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.
(3) Interest will accrue on the Class LWAC-1 and Class LWAC-2
Uncertificated Interests during each Interest Accrual Period at the
Weighted Average Adjusted Net Mortgage Rate.
(4) The Class LWAC-2 Uncertificated Interest has a Uncertificated Principal
Balance equal to 99.99% of UPB-2. As of any Distribution Date, "UPB-2"
is equal to the aggregate Certificate Principal Balance of the Class of
Sequential Pay Certificates other than the Class A Certificate 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.
(d) (i) Any Prepayment Premiums (whether described in the related
Mortgage Loan documents as a fixed prepayment premium or a yield maintenance
amount) actually collected with respect to a Mortgage Loan or REO Loan during
any particular Collection Period will be distributed on the related Distribution
Date as follows:
(A) first, to the Holders of the Class X-1 Certificates, the
Holders of the Class X-2 Certificates and the Holders of the respective
Classes of the Class A, Class B, Class C, Class D and Class E
Certificates then entitled to distributions of principal on such
Distribution Date, up to an amount equal to the corresponding PV Yield
Loss Amount (as defined below) for each such Class of Certificates, pro
rata in accordance with their respective entitlements; and
(B) then, to the extent of any portion of such Prepayment
Premium remaining following the distributions described in the
preceding clause (i), to the Holders of the Class X-1 and Class X-2
Certificates, pro rata in accordance with the corresponding Class
Notional Amount for each such Class of Certificates as of the preceding
Distribution Date (after giving effect to any reductions in such Class
Notional Amounts as of such preceding Distribution Date).
The "PV Yield Loss Amount" for each Distribution Date shall mean, with
respect to any Class of REMIC II Regular Certificates as to which any payment of
principal is to be applied on such Distribution Date in reduction of its Class
Principal Balance, and each Class of Class X Certificates, as the case may be,
an amount equal to the product of the applicable Annuity Factor and the
applicable Lost Coupon Amount.
For purposes of computing the PV Yield Loss Amount for any Class of
REMIC II Regular Certificates for any Distribution Date, the following
definitions shall apply:
The "Annuity Factor" for any Class of REMIC II Regular Certificates
shall be equal to the following:
1-(1 + T)-n
-----------------
T
where n equals either (i) one-twelfth of the number of months from such
Distribution Date to the Assumed Final Distribution Date for such Class, if the
Assumed Final Distribution Date for such Class is later than such Distribution
Date, or (ii) zero, if the Assumed Final Distribution Date for such Class
coincides with or is earlier than such Distribution Date, and T equals the
Reinvestment Yield.
The PV Yield Loss Amount for the Class F, Class G, Class H, Class J and
Class K Certificates, and for any Class of Sequential Pay Certificates that is
not receiving a distribution of principal, is zero.
The "Assumed Final Distribution Date" for each Class of REMIC II
Regular Certificates is the Distribution Date in the month set forth below with
respect to such Class.
Class Month of Assumed Final Distribution Date
----- ----------------------------------------
Class A-1 January 20, 2005
Class A-2 December 20, 2006
Class A-3 December 20, 2007
Class X-1 December 20, 2007
Class X-2 March 20, 2008
Class B January 20, 2008
Class C January 20, 2008
Class D January 20, 2008
Class E January 20, 2008
Class F February 20, 2008
Class G February 20, 2008
Class H February 20, 2008
Class J March 20, 2008
Class K March 20, 2008
The "Lost Coupon Amount" shall mean: (a) with respect to any Class of
the Classes of Class A, Class B, Class C, Class D and Class E Certificates as to
which a prepayment of principal is to be applied on such Distribution Date in
reduction of its Class Principal Balance (after application of scheduled
principal payments), the product of (x) the amount, if any, by which the
Pass-Through Rate for such Class exceeds the applicable Reinvestment Yield and
(y) the aggregate amount of principal in respect of prepayments on the Mortgage
Loans paid to such Class in reduction of its Class Principal Balance on such
Distribution Date; and (b) with respect to the Class X-1 or the Class X-2
Certificates, the product of (x) the Pass-Through Rate applicable to such Class
for such Distribution Date and (y) a fraction, the numerator of which is the
Class Notional Amount of such Class as of the preceding Distribution Date (after
giving effect to any reduction is such Class Notional Amount on such preceding
Distribution Date), and the denominator of which is the aggregate Class Notional
Amount of the Class X Certificates as of the Distribution Date (after giving
effect to any in such Class Notional Amounts on such preceding Distribution
Date), and (z) the amount by which the aggregate Class Notional Amount of the
Class X Certificates is reduced in respect of prepayments on the Mortgage Loans
on such Distribution Date.
The "Reinvestment Yield" for any Class of REMIC II Regular Certificates
and any Distribution Date shall be a rate determined by the Trustee, in good
faith, equal to the average yield for "This Week" as most recently reported by
the Federal Reserve Board in Federal Reserve Statistical Release H.15 (519) for
U.S. Treasury securities with a maturity coterminous with the Assumed Final
Distribution Date for such Class. If there is no U.S. Treasury security listed
with a maturity coterminous with the Assumed Final Distribution Date for such
Class, then the Reinvestment Yield shall be a rate determined by the Trustee, in
good faith, equal to the interpolated yield to maturity of U.S. Treasury
securities with maturities next longer and shorter than such remaining term to
maturity (such interpolated yield to be rounded to the nearest whole multiple of
1/100 of 1% per annum, if the interpolated yield is not such a multiple). In the
event the yields of U.S. Treasury securities are no longer published in Federal
Reserve Statistical Release H.15(519), the Trustee shall select a comparable
publication to determine the Reinvestment Yield.
(ii) All distributions of Prepayment Premiums made in respect
of the respective Classes of REMIC II Regular Certificates on each
Distribution Date pursuant to Section 4.01(d) shall first be
distributed from REMIC I to REMIC II in respect of the REMIC I Regular
Interests, pro rata based upon the amount of principal distributed in
respect of each Class of REMIC I Regular Interest for such Distribution
Date pursuant to Section 4.01(a)(i) above.
(e) 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 provided below, 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 written
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), 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 any Realized Loss or Additional Trust
Fund Expense previously allocated to such Certificate) will be made in like
manner, but only upon presentation and surrender of such Certificate at the
Corporate Trust Office or such other location specified in the notice to
Certificateholders of such final distribution. Any distribution that is to be
made with respect to a Certificate in reimbursement of a Realized Loss or
Additional Trust Fund Expense previously allocated thereto, which reimbursement
is to occur after the date on which such Certificate is surrendered as
contemplated by the preceding sentence, will be made by check mailed to the
address of the Certificateholder that surrendered such Certificate as such
address last appeared in the Certificate Registrar or to any other address of
which the Trustee was subsequently notified in writing.
(f) 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.
(g) The rights of the Certificateholders to receive distributions from
the proceeds of the Trust Fund in respect of their Certificates, and all rights
and interests of the Certificateholders in and to such distributions, shall be
as set forth in this Agreement. Neither the Holders of any Class of Certificates
nor any party hereto shall in any way be responsible or liable to the Holders of
any other Class of Certificates in respect of amounts properly previously
distributed on the Certificates. Distributions in reimbursement of Realized
Losses and Additional Trust Fund Expenses previously allocated to a Class of
Certificates shall not constitute distributions of principal and shall not
result in a reduction of the related Class Principal Balance.
(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 Realized
Loss or Additional Trust Fund Expense previously allocated to such Class of
Certificates) will be made on the next Distribution Date, the Trustee shall, as
soon as practicable in the month in which such Distribution Date occurs, mail to
each Holder of such Class of Certificates as of the date of mailing 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 Corporate Trust Office 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). If all of the Certificates
shall not have been surrendered for cancellation by the second anniversary of
the delivery of the second notice, the Trustee shall distribute to the Class
R-II Certificateholders all unclaimed funds and other assets which remain
subject hereto.
(i) Notwithstanding any other provision of this Agreement, the Trustee
shall comply with all federal withholding requirements respecting payments to
Certificateholders of interest or original issue discount that the Trustee
reasonably believes are applicable under the Code. The consent of
Certificateholders shall not be required for such withholding. In the event the
Trustee does withhold any amount from interest or original issue discount
payments or advances thereof to any Certificateholder pursuant to federal
withholding requirements, the Trustee shall indicate the amount withheld to such
Certificateholders. Such amounts shall be deemed to have been distributed to
such Certificateholders for all purposes of this Agreement.
SECTION 4.02 Statements to Certificateholders; Certain Reports
by the Master Servicer and the Special Servicer.
(a) On each Distribution Date, the Trustee shall forward by mail to
each Holder (and, if it shall have certified to the Trustee as to its Ownership
Interest in a Class of Book-Entry Certificates, each Certificate Owner) of the
REMIC II Regular Certificates and to the Rating Agencies (provided, however, the
Trustee need not forward to Moody's and DCR the following statement if made
available via the Trustee's Website as described herein) a statement (a
"Distribution Date Statement"), substantially in the form contemplated on pages
C-1 through C-17 of the Prospectus Supplement, as to the distributions made on
such Distribution Date setting forth:
(i) the amount of the distribution, if any, on such
Distribution Date to the Holders of each Class of REMIC II Regular
Certificates in reduction of the Class Principal Balance thereof;
(ii) the amount of the distribution, if any, on such
Distribution Date to the Holders of each Class of REMIC II Regular
Certificates allocable to Distributable Certificate Interest and the
amount of the distribution, if any, on such Distribution Date to the
Holders of each Class of REMIC II Regular Certificates allocable to
Prepayment Premiums;
(iii) the Available Distribution Amount for such Distribution
Date;
(iv) the aggregate amount of P&I Advances made in respect of
the immediately preceding Distribution Date;
(v) the aggregate Stated Principal Balance of the Mortgage
Pool 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 Pool as of the end of the Collection Period for the
immediately preceding Distribution Date;
(vii) as of the close of business on the last day of the most
recently ended calendar month, the number, aggregate unpaid principal
balance and specific identification (by loan number) of Mortgage Loans
(A) delinquent 30-59 days, (B) delinquent 60-89 days, (C) delinquent 90
or more days, and (D) as to which foreclosure proceedings have been
commenced;
(viii) with respect to any REO Property included in the Trust
Fund as of the end of the Collection Period for such Distribution Date,
the principal balance of the Mortgage Loan as of the date such Mortgage
Loan became delinquent;
(ix) the Accrued Certificate Interest and Distributable
Certificate Interest in respect of each Class of REMIC II Regular
Certificates for such Distribution Date;
(x) the aggregate amount of Distributable Certificate Interest
payable in respect of each Class of REMIC II Regular Certificates on
such Distribution Date, including, without limitation, any
Distributable Certificate Interest remaining unpaid from prior
Distribution Dates;
(xi) any unpaid Distributable Certificate Interest in respect
of each Class of REMIC II Regular Certificates after giving effect to
the distributions made on such Distribution Date;
(xii) the Pass-Through Rate for each Class of REMIC II Regular
Certificates for such Distribution Date;
(xiii) the Principal Distribution Amount for such Distribution
Date, separately identifying the respective components of such amount;
(xiv) the aggregate of all Realized Losses incurred during the
related Collection Period and all Additional Trust Fund Expenses
incurred during the related Collection Period;
(xv) the Certificate Balance or Notional Amount, as the case
may be, of each Class of REMIC II Regular Certificates outstanding
immediately before and immediately after such Distribution Date,
separately identifying any reduction therein due to the allocation of
Realized Losses and Additional Trust Fund Expenses on such Distribution
Date;
(xvi) the Certificate Factor for each Class of REMIC II
Regular Certificates immediately following such Distribution Date;
(xvii) the aggregate amount of servicing fees paid to the
Master Servicer and the Special Servicer, collectively and separately,
during the related Collection Period; and
(xviii) a brief description of any material, waiver,
modification or amendment of any Mortgage Loan entered into by the
Master Servicer or Special Servicer pursuant to Section 3.20 during the
related Collection Period.
Any item of information disclosed to the Trustee by the Master Servicer
pursuant to Section 3.19(a) since the preceding Distribution Date (or, in the
case of the initial Distribution Date, since the Closing Date) shall be made
available with the Distribution Date Statement.
In the case of information furnished pursuant to clauses (i) and (ii)
above, the amounts shall be expressed as a dollar amount in the aggregate for
all Certificates of each applicable Class and per Single Certificate. Except
with respect to the Certificate Factor (required to be reported by clause (xvi)
above), financial information reported by the Trustee to the Certificateholders
pursuant to this Section 4.02 shall be expressed as a dollar amount rounded to
the nearest whole cent. Absent actual knowledge of an error therein, the Trustee
shall have no obligation to recompute, recalculate or verify any information
provided to it by the Master Servicer or Special Servicer. The calculations by
the Trustee contemplated by this Section 4.02 shall, in the absence of manifest
error, be presumptively deemed to be correct for all purposes hereunder.
The Trustee shall be entitled to rely on but shall not be responsible
for the content or accuracy of any information provided by third parties for
purposes of preparing the Distribution Date Statement and may affix thereto any
disclaimer it deems appropriate in its reasonable discretion (without suggesting
liability on the part of any other party hereto).
On each Distribution Date, the Trustee shall also deliver or cause to
be delivered to such Certificateholders and Certificate Owners and to the Rating
Agencies (provided, however, the Trustee need not forward to Moody's and DCR the
following statement if made available via the Trustee's Website as described
herein), a report (based on information received from the Master Servicer and
Special Servicer) containing, as and to the extent received from the Master
Servicer and Special Servicer, information regarding the Mortgage Pool as of the
close of business on the related Determination Date, which report shall contain
substantially the categories of information regarding the Mortgage Loans set
forth in Annex A to the Prospectus Supplement (calculated, where applicable, on
the basis of the most recent relevant information provided by the Mortgagors to
the Master Servicer or the Special Servicer and by the Master Servicer or the
Special Servicer, as the case may be, to the Trustee) and such information shall
be presented in a loan-by-loan and tabular format substantially similar to the
formats utilized in Annex A to the Prospectus Supplement (provided that no
information will be provided as to any repair and replacement or other cash
reserve and the only financial information to be reported on an ongoing basis
will be the actual expenses, actual revenues and actual Net Operating Income for
the respective Mortgaged Properties and a Debt Service Coverage Ratio calculated
on the basis thereof).
In addition, the Trustee shall so deliver or cause to be delivered to
such Certificateholders and Certificate Owners and to the Rating Agencies
(provided, however, the Trustee need not forward to Moody's and DCR the
following statement if made available via the Trustee's Website as described
herein), at the same time that the Distribution Date Statement is delivered
thereto, each (i) Delinquent Loan Status Report, (ii) REO Status Report, (iii)
Historical Loan Modification Report, (iv) Special Servicer Loan Status Report,
and (v) Historical Loss Report (such five reports, the "Servicer Reports") that
has been received by the Trustee since the prior Distribution Date.
Additionally, the Trustee shall also be required to provide the Servicer Reports
to any potential investor in the Certificates who requests such reports in
writing.
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 REMIC II Regular Certificate a statement containing the
information as to the applicable Class set forth in clauses (i) and (ii) above
of the description of Distribution Date Statement, 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.
Upon filing with the IRS, the REMIC Administrator shall furnish to the
Holders of the Class R-I and Class R-II Certificates the Form 1066 and shall
furnish their respective Schedules Q thereto at the times required by the Code
or the IRS, and shall provide from time to time such information and
computations with respect to the entries on such forms as any Holder of the
Class R-I and Class R-II Certificates may reasonably request.
The Trustee shall make available each month, to any interested party,
the Distribution Date Statement via the Trustee's Website, electronic bulletin
board and its fax-on-demand service. In addition, the Trustee will make
available each month the Servicer Reports on the Trustee's Website. (The
Trustee's Website may be accessed by calling (301) 815-6620, and its
fax-on-demand service may be accessed by calling (301) 815-6610). In addition,
the Trustee shall also make Mortgage Loan information as presented in the CSSA
loan setup file and CSSA loan periodic update file format available each month
to any Certificateholder, any Certificate Owner, the Rating Agencies or any
other interested party via the Trustee's Website. In addition, the Trustee shall
make available, as a convenience for interested parties (and not in furtherance
of the distribution of the Base Prospectus and Prospectus Supplement under the
securities laws), this Agreement, the Base Prospectus and the Prospectus
Supplement via the Trustee's Website. The Trustee shall make no representations
or warranties as to the accuracy or completeness of such documents and will
assume no responsibility therefor.
In connection with providing access to the Trustee's Website or
electronic bulletin board, the Trustee may require registration and the
acceptance of a disclaimer. The Trustee shall not be liable for the
dissemination of information in accordance with this Agreement.
(b) At or before 11:00 a.m. (New York City time) on the third Business
Day prior to the related Distribution Date, the Master Servicer shall deliver or
cause to be delivered to the Trustee and the Special Servicer, in writing and on
a computer-readable medium, in form reasonably acceptable to the Trustee,
including, without limitation, on a loan-by-loan basis, the following reports:
(1) a Delinquent Loan Status Report, (2) an REO Status Report, (3) a Historical
Loan Modification Report, (4) a Historical Loss Report, (5) the Special Servicer
Loan Status Report most recently received by the Master Servicer and (6) a
single report setting forth the information specified in clauses (i) through
(xv) below (the items specified in clause (xiii) below to be reported once per
calendar quarter, and the amounts and allocations of payments, collections, fees
and expenses with respect to Specially Serviced Mortgage Loans and REO
Properties to be based upon the report to be delivered by the Special Servicer
to the Master Servicer on the second Business Day after such Determination Date,
in the form required by Section 4.02(c) below):
(i) the aggregate amount that is to be transferred from the
Certificate Account to the Distribution Account on the related Master
Servicer Remittance Date that is allocable to principal on or in
respect of the Mortgage Loans and any REO Loans, separately identifying
the aggregate amount of any Principal Prepayments included therein, and
(if different) the Principal Distribution Amount for the immediately
succeeding Distribution Date;
(ii) the aggregate amount that is to be transferred from the
Certificate Account to the Distribution Account on the related Master
Servicer Remittance Date that is allocable to (A) interest on or in
respect of the Mortgage Loans and any REO Loans and (B) Prepayment
Premiums;
(iii) the aggregate amount of any P&I Advances (specifying the
principal and interest portions thereof separately) to be made pursuant
to Section 4.03 of this Agreement that were made in respect of the
immediately preceding Distribution Date;
(iv) the amount of the Master Servicing Fees, Special
Servicing Fees, Workout Fees, Liquidation Fees and other servicing
compensation with respect to the Mortgage Pool for the Collection
Period ending on such Determination Date, specifying the items and
amounts of such other servicing compensation payable to the Master
Servicer, the Special Servicer and any Sub-Servicers retained by each;
(v) the number and aggregate unpaid principal balance as of
the close of business on the last day of the most recently ended
calendar month of Mortgage Loans in the Mortgage Pool (A) remaining
outstanding, (B) delinquent 30-59 days, (C) delinquent 60-89 days, (D)
delinquent 90 days or more but not in foreclosure and (E) in
foreclosure; and the number and aggregate unpaid principal balance as
of the close of business on such Determination Date of Mortgage Loans
in the Mortgage Pool (x) as to which the related Mortgaged Property has
become REO Property during the Collection Period ending on such
Determination Date, (y) as to which the related Mortgaged Property was
REO Property as of the end of such Collection Period and (z) the terms
of which have been modified during such Collection Period pursuant to
this Agreement;
(vi) the loan number and the unpaid principal balance as of
the close of business on such Determination Date of each Specially
Serviced Mortgage Loan and each other Defaulted Mortgage Loan;
(vii) with respect to any REO Property that was included in
the Trust Fund as of the close of business on such Determination Date,
the loan number of the related Mortgage Loan, the book value of such
REO Property and the amount of REO Revenues and other amounts, if any,
received on such REO Property during the related Collection Period and
the portion thereof included in the Available Distribution Amount for
the immediately succeeding Distribution Date;
(viii) with respect to any Mortgage Loan as to which the
related Mortgaged Property became an REO Property during the Collection
Period ending on such Determination Date, the loan number of such
Mortgage Loan and the Stated Principal Balance of such Mortgage Loan as
of the related Acquisition Date;
(ix) with respect to any Mortgage Loan or REO Property as to
which a Final Recovery Determination was made by the Master Servicer
during the Collection Period ending on such Determination Date, the
loan number of such Mortgage Loan or, in the case of an REO Property,
of the related Mortgage Loan, the amount of Liquidation Proceeds and/or
other amounts, if any, received thereon during such Collection Period
and the portion thereof included in the Available Distribution Amount
for the immediately succeeding Distribution Date, and any resulting
Realized Loss;
(x) the aggregate Stated Principal Balance of the Mortgage
Pool outstanding immediately before and immediately after such
Distribution Date;
(xi) the aggregate amount of Realized Losses on the Mortgage
Pool for the Collection Period ending on such Determination Date (and
the portions allocable to principal and interest);
(xii) the aggregate amount of the Additional Trust Fund
Expenses (broken down by type) withdrawn from the Certificate Account
during the Collection Period ending on such Determination Date;
(xiii) to the extent provided by the related Mortgagors,
information with respect to occupancy rates for all Mortgaged
Properties, sales per square foot with respect to all retail Mortgaged
Properties, and capital expenditures and capital reserve balances with
respect to all Mortgaged Properties, in each case in the format of the
Mortgage Loan Schedule;
(xiv) such other information on a Mortgage Loan-by-Mortgage
Loan or REO Property-by-REO Property basis as the Trustee or the
Depositor shall reasonably request in writing (including, without
limitation, information with respect to any modifications of any
Mortgage Loan, any Mortgage Loans in default or foreclosure, the
operation and disposition of REO Property and the assumption of any
Mortgage Loan); and
(xv) a brief description of any material waiver, modification
or amendment of any Mortgage Loan entered into by the Master Servicer
pursuant to this Agreement during the related Collection Period.
On the date on which the reports described above are delivered to the
Trustee, the Master Servicer shall also deliver or cause to be delivered to the
Trustee and the Rating Agencies a report, in writing and in a computer-readable
medium, in form reasonably acceptable to the Trustee, containing the information
with respect to the Mortgage Pool necessary for the Trustee to prepare with
respect to the Mortgage Pool the additional schedules and tables required to be
made available by the Trustee pursuant to Section 4.02(a) in substantially the
same formats set forth in Annex A to the Prospectus Supplement, in each case
reflecting the changes in the Mortgage Pool during the related Collection
Period.
Not later than the first day of the calendar month following each
Master Servicer Remittance Date, the Master Servicer shall forward to the
Trustee a statement, setting forth the status of the Certificate Account as of
the close of business on such Master Servicer Remittance Date, stating that all
distributions required by this Agreement to be made by the Master Servicer have
been made (or, in the case of any required distribution that has not been made
by the Master Servicer, specifying the nature and status thereof) and showing,
for the period from the preceding Master Servicer Remittance Date (or, in the
case of the first Master Servicer Remittance Date, from the Cut-Off Date) to
such Master Servicer Remittance Date, the aggregate of deposits into and
withdrawals from the Certificate Account for each category of deposit specified
in Section 3.04(a) and each category of withdrawal specified in Section 3.05(a).
The Master Servicer shall also deliver to the Trustee, upon reasonable request
of the Trustee, any and all additional information relating to the Mortgage
Loans (which information shall be based upon reports delivered to the Master
Servicer by the Special Servicer with respect to Specially Serviced Mortgage
Loans and REO Properties).
Within 130 days following the end of each calendar quarter, commencing
with the calendar quarter ended June 30, 1998 the Master Servicer shall deliver
to the Trustee, with respect to each Mortgaged Property and REO Property, a
report (an "Operating Statement Analysis") in electronic form containing
revenue, expense and net operating income information normalized using the
methodology described in Annex A of the Prospectus Supplement as of the end of
such calendar quarter. The requirement that the Master Servicer deliver each
Operating Statement Analysis is subject to the Master Servicer having received
directly or through the Special Servicer the related operating statements and
rent rolls from the related Mortgagor or otherwise. Certificate Owners who have
certified to the Master Servicer as to their beneficial ownership of any
Book-Entry Certificate may, to the extent such owners request them, obtain a
copy of an Operating Statement Analysis.
The Master Servicer, on each Determination Date, shall forward (for
delivery on such Determination Date) to the Special Servicer all information
collected by the Master Servicer which the Special Servicer is required to
include in the Special Servicer Loan Status Report. Further, the Master Servicer
shall cooperate with the Special Servicer and provide the Special Servicer with
the information in the possession of the Master Servicer reasonably requested by
the Special Servicer, in writing, to the extent required to allow the Special
Servicer to perform its obligations under this Agreement with respect to those
Mortgage Loans serviced by the Master Servicer.
The Master Servicer shall use its reasonable efforts to notify the
Rating Agencies in a timely manner of any change in the identity of either of
the two largest tenants of any retail Mortgaged Property and any casualty at or
condemnation proceeding with respect to any Mortgaged Property, subject to its
becoming aware of such change or event.
To the extent the statements, reports and information (or portions
thereof) to be delivered by the Master Servicer under this Section 4.02(b) are
derived from underlying information to be delivered to the Master Servicer by
the Special Servicer, the Master Servicer shall not be liable for any failure to
deliver such statement, report or information (or portion thereof) on the
prescribed dates, to the extent such failure is caused by the Special Servicer's
failure to deliver such underlying information in a timely manner. Absent actual
knowledge to the contrary, the Master Servicer may conclusively rely on any such
information forwarded to it by the Special Servicer and shall have no obligation
to verify the same.
(c) On the second Business Day after each Determination Date, the
Special Servicer shall forward to the Master Servicer (A) the Special Servicer
Loan Status Report and (B) all information the Master Servicer will be required
to include in the other reports that the Master Servicer is obligated to deliver
to the Trustee pursuant to Section 4.02(b), to the extent such information
relates to any Specially Serviced Mortgage Loan or any REO Property. The Special
Servicer shall also deliver to the Master Servicer and the Trustee, upon the
reasonable written request of either of them, any and all additional information
in the possession of the Special Servicer relating to the Specially Serviced
Mortgage Loans and the REO Properties.
The Special Servicer shall cooperate with the Master Servicer and
provide the Master Servicer with the information in the possession of the
Special Servicer reasonably requested by the Master Servicer, in writing, to the
extent required to allow the Master Servicer to perform its obligations under
this Agreement with respect to the Specially Serviced Mortgage Loans and REO
Properties. Additional information regarding the Specially Serviced Mortgage
Loans, including, without limitation, any financial or occupancy information
(including lease summaries) provided to the Special Servicer by the Mortgagors
or otherwise obtained, shall be delivered to the Master Servicer, within ten
days of receipt.
SECTION 4.03 P&I Advances.
(a) On or before 1:00 p.m., New York City time, on each Master Servicer
Remittance Date, the Master Servicer shall either (i) deposit into the
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; provided
that if Late Collections of any of the delinquent principal and/or interest in
respect of which it is to make P&I Advances on any Master Servicer Remittance
Date are then on deposit in the Certificate Account, the Master Servicer shall
use such Late Collections (net of any Master Servicing Fees and Workout Fees
payable therefrom) to make such P&I Advances. Any amounts held in the
Certificate Account for future distribution and so used to make P&I Advances
(other than the Late Collections of the delinquent principal and/or interest
contemplated by the proviso to the preceding sentence) 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
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). If, as of 1:00 p.m., New York City time, on any
Master Servicer Remittance Date, the Master Servicer shall not have made any P&I
Advance required to be made on such date pursuant to this Section 4.03(a) (and
shall not have delivered to the Trustee the requisite Officer's Certificate and
documentation related to a determination of nonrecoverability of a P&I Advance),
then the Trustee shall provide notice of such failure to a Servicing Officer of
the Master Servicer by facsimile transmission sent to telecopy no. (816)
435-2327 (or such alternative number provided by the Master Servicer to the
Trustee in writing) and by telephone at telephone no. (816) 435-5000 (or such
alternative number provided by the Master Servicer to the Trustee in writing) as
soon as possible, but in any event before 3:00 p.m., New York City time, on such
Master Servicer Remittance Date. If, after such notice, the Trustee does not
receive the full amount of such P&I Advances by the close of business (New York
City time) on such Master Servicer Remittance Date, then (i) unless the Trustee
determines that such Advance would be a Nonrecoverable P&I Advance if made, the
Trustee shall make the portion of such P&I Advances that was required to be, but
was not, made by the Master Servicer on such Master Servicer Remittance Date and
(ii) such failure shall constitute an Event of Default on the part of the Master
Servicer.
(b) The aggregate amount of P&I Advances to be made in respect of the
Mortgage Loans (including, without limitation, Balloon Mortgage Loans delinquent
as to their respective Balloon Payments) and any REO Loans for any Distribution
Date shall equal, subject to subsection (c) below, the aggregate of all Monthly
Payments (other than Balloon Payments) and any Assumed Monthly Payments, in each
case net of related Master Servicing Fees and Workout Fees payable hereunder,
that were due or deemed due, as the case may be, in respect thereof on their
respective Due Dates during the related Collection Period and that were not paid
by or on behalf of the related Mortgagors or otherwise collected as of the close
of business on the last day of the related Collection Period; provided that, if
an Appraisal Reduction Amount exists with respect to any Required Appraisal
Loan, then, in the event of subsequent delinquencies thereon, the interest
portion of the P&I Advance in respect of such Required Appraisal Loan for the
related Distribution Date shall be reduced (it being herein acknowledged that
there shall be no reduction in the principal portion of such P&I Advance) to
equal the product of (i) the amount of the interest portion of such P&I Advance
for such Required Appraisal Loan for such Distribution Date without regard to
this proviso, multiplied by (ii) a fraction, expressed as a percentage, the
numerator of which is equal to the Stated Principal Balance of such Required
Appraisal Loan immediately prior to such Distribution Date, net of the related
Appraisal Reduction Amount, if any, and the denominator of which is equal to the
Stated Principal Balance of such Required Appraisal Loan immediately prior to
such Distribution Date.
(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. In addition, Nonrecoverable P&I
Advances shall be reimbursable pursuant to Section 3.05(a) out of general
collections on the Mortgage Pool on deposit in the Certificate Account. The
determination by the Master Servicer or, if applicable, the Trustee, 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 promptly (and, in any event, in the case of a
proposed P&I Advance by the Master Servicer, no less than 5 Business Days prior
to the related Master Servicer Remittance Date) to the Trustee (or, if
applicable, retained thereby), the Depositor and the Rating Agencies, setting
forth the basis for such determination, together with ( such determination is
prior to the liquidation of the related Mortgage Loan or REO Property) a copy of
an Appraisal of the related Mortgaged Property or REO Property, as the case may
be, which shall have been performed within the twelve months preceding such
determination, and further accompanied by any other information that the Master
Servicer or the Special Servicer may have obtained and that supports such
determination. The Trustee shall deliver such Officer's Certificate as soon as
practicable after its determination that such P&I Advance would be
nonrecoverable. If such an Appraisal shall not have been required and performed
pursuant to the terms of this Agreement, the Master Servicer or the Special
Servicer, as the case may be, may, subject to its reasonable and good faith
determination that such Appraisal will demonstrate the nonrecoverability of the
related Advance, obtain an Appraisal for such purpose at the expense of the
Trust. The Trustee shall be entitled to rely on any determination of
nonrecoverability that may have been made by the Master Servicer or the Special
Servicer with respect to a particular P&I Advance, and the Master Servicer shall
be entitled to rely on any determination of nonrecoverability that may have been
made by the Special Servicer with respect to a particular P&I Advance.
(d) As and to the extent permitted by Section 3.05(a), the Master
Servicer and the Trustee shall each be entitled to receive interest at the
Reimbursement Rate in effect from time to time, accrued on the amount of each
P&I Advance made thereby (out of its own funds) for so long as such P&I Advance
is outstanding (or, in the case of Advance Interest payable to the Master
Servicer, if earlier, until the Late Collection of the delinquent principal
and/or interest in respect of which such P&I Advance was made has been received
by the Master Servicer or any of its Sub-Servicers), and such interest will be
paid: first, out of any Default Charges collected on or in respect of the
related Mortgage Loan during, and allocable to, the period, if any, that it was
a Specially Serviced Mortgage Loan or an REO Loan; and second, at any time
coinciding with or following the reimbursement of such P&I Advance, out of
general collections on the Mortgage Loans and any REO Properties on deposit in
the Certificate Account. As and to the extent provided by Section 3.05(a), the
Master Servicer shall reimburse itself or the Trustee, as appropriate, for any
P&I Advance made thereby as soon as practicable after funds available for such
purpose are deposited in the Certificate Account, and in no event shall interest
accrue in accordance with this Section 4.03(d) on any P&I Advance as to which
the corresponding Late Collection had been received as of the related date on
which such P&I Advance was made.
SECTION 4.04 Allocation of Realized Losses and Additional
Trust Fund Expenses.
(a) On each Distribution Date, following the distributions to be made
to the Certificateholders on such date pursuant to Section 4.01(b), the Trustee
shall determine the amount, if any, by which (i) the then aggregate Certificate
Principal Balance of the Sequential Pay Certificates, exceeds (ii) the aggregate
Stated Principal Balance of the Mortgage Pool that will be outstanding
immediately following such Distribution Date. If such excess does exist, then
the Class Principal Balances of the Class K, Class J, Class H, Class G, Class F,
Class E, Class D, Class C and Class B Certificates shall be reduced
sequentially, in that order, in each case, until such excess or the related
Class Principal Balance is reduced to zero (whichever occurs first). If, after
the foregoing reductions, the amount described in clause (i) of the second
preceding sentence still exceeds the amount described in clause (ii) of the
second preceding sentence, then the respective Class Principal Balances of the
Class A-1, Class A-2 and Class A-3 Certificates shall be reduced, pro rata in
accordance with the relative sizes of the then outstanding Class Principal
Balances of such Classes of Certificates, until such excess or each such Class
Principal Balance is reduced to zero (whichever occurs first). Such reductions
in the Class Principal Balances of the respective Classes of the Sequential Pay
Certificates shall be deemed to be allocations of Realized Losses and Additional
Trust Fund Expenses.
(b) With respect to any Distribution Date, any Realized Loss allocated
pursuant to Section 4.04(a) with respect to such Distribution Date shall reduce
the Uncertificated Principal Balances of the REMIC I Regular Interests as a
write-off and shall be allocated as follows: (A) as between (1) 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 LJ and Class LK Uncertificated Interests and (2) the Class
LWAC-1 Uncertificated Interest and the Class LWAC-2 Uncertificated Interest, in
the proportions in which principal is distributed thereto as set forth in
Section 4.01(a)(i) 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, Class LJ
and Class LK Uncertificated Interests, in the same priority as its Class of
Corresponding Certificates pursuant to Section 4.04(a).
<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-16; provided that 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.
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 REMIC II Regular Certificates will
be issuable in denominations corresponding to initial Certificate Principal
Balances or Certificate Notional Amounts, as the case may be, as of the Closing
Date of not less than $100,000 (or, with respect to the Class A Certificates,
$10,000 and, with respect to the Class X Certificates, $1,000,000) and any whole
dollar denomination in excess thereof; provided, however, that a single
Certificate of each Class thereof may be issued in a different denomination.
Each Class of Residual Certificates will be issuable only in a denomination
representing the entire Class. 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) set forth on a schedule attached
thereto or (c) in the case of any beneficial interest in a Book-Entry
Certificate, the interest of the related Certificate Owner in the applicable
Class of Certificates as reflected on the books and records of the Depository or
related Participants, as applicable, (ii) expressed in terms of initial
Certificate Balance or initial 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.
(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;
provided that the Certificates issued on the Closing Date shall, in any event,
be dated the Closing Date.
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
(located as of the Closing Date at Norwest Center, Sixth and Marquette,
Minneapolis, Minnesota 55479-0113) 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 Trustee 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 Trustee shall not be relieved of any
of its duties or responsibilities hereunder as Certificate Registrar 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. Upon
request, the Trustee shall promptly inform, or cause the Certificate Registrar
to inform, the Master Servicer or the Special Servicer, as applicable, of the
identity of all Certificateholders of the Controlling Class.
If three or more Certificateholders (hereinafter referred to as
"applicants") apply in writing to the Trustee, and such application states that
the applicants desire to communicate with other Certificateholders with respect
to their rights under this Agreement or under the Certificates and is
accompanied by a copy of the communication which such applicants propose to
transmit, then the Trustee shall, within five Business Days after the receipt of
such application, afford such applicants access during normal business hours to
the most recent list of Certificateholders held by the Trustee. If the Trustee
is no longer the Certificate Registrar and such a list is as of a date more than
90 days prior to the date of receipt of such applicants' request, the Trustee
shall promptly request from the Certificate Registrar a current list as provided
above, and shall afford such applicants access to such list promptly upon
receipt.
Every Certificateholder, by receiving and holding such list, agrees
with the Certificate Registrar and the Trustee that neither the Certificate
Registrar nor the Trustee shall be held accountable by reason of the disclosure
of any such information as to the names and addresses of the Certificateholders
hereunder, regardless of the source from which such information was derived.
(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 B 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 Certificate Registrar and 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 Servicer 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 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, the Servicer 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, the Servicer 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 Certificate Registrar
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.
(c) With respect to the Subordinate Certificates, no sale, transfer,
pledge or other disposition by any Holder of any such Certificate shall be made
unless the Certificate Registrar shall have received either (i) a representation
letter from the proposed purchaser or transferee of such Certificate
substantially in the form of Exhibit F attached hereto, to the effect that such
proposed purchaser or transferee is not (a) an employee benefit plan subject to
the fiduciary responsibility provisions of ERISA or 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 ("Similar Law") which is, to a material extent,
similar to the foregoing provisions of ERISA or the Code (each a "Plan") or (b)
a person acting on behalf of or using the assets of any such Plan (including an
entity whose underlying assets include Plan assets by reason of investment in
the entity by such Plan and the application of Department of Labor Regulation
ss. 2510.3-101), other than an insurance company using the assets of its general
account under circumstances whereby the purchase and holding of such
Certificates by such insurance company would be exempt from the prohibited
transaction provisions of ERISA and the Code under Prohibited Transaction Class
Exemption 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 Certificate Registrar and the
Depositor to the effect that the acquisition and holding of such Certificate by
such purchaser or transferee will not result in the assets of the Trust Fund
being deemed to be "plan assets" and subject to the fiduciary responsibility
provisions of ERISA, the prohibited transaction provisions of the Code or the
provisions of any Similar Law, will not constitute or result in a "prohibited
transaction" within the meaning of ERISA, Section 4975 of the Code or any
Similar Law, and will not subject the Trustee, the Certificate Registrar, the
Master Servicer, the Special Servicer, the Underwriter, the Placement Agent or
the Depositor to any obligation or liability (including obligations or
liabilities under ERISA, Section 4975 of the Code or any such Similar Law) in
addition to those set forth in the Agreement. The Certificate Registrar shall
not register the sale, transfer, pledge or other disposition of any such
Certificate unless the Certificate Registrar 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, the Underwriter, the
Placement Agent, the Certificate Registrar or and 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) or (b) above. Any transfer, sale,
pledge or other disposition of any such Certificates that would constitute or
result in a prohibited transaction under ERISA, Section 4975 of the Code or any
Similar Law, or would 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).
(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)(A) below to deliver
payments to a Person other than such Person and to have irrevocably authorized
the Trustee under clause (ii)(B) below to negotiate the terms of any mandatory
sale and to execute all instruments of Transfer and to do all other things
necessary in connection with any such sale. The rights of each Person acquiring
any Ownership Interest in a Residual Certificate are expressly subject to the
following provisions:
(A) Each Person holding or acquiring any Ownership Interest in
a Residual Certificate shall be a Permitted Transferee and a United
States Person and shall promptly notify the Trustee and the REMIC
Administrator of any change or impending change in its status as a
Permitted Transferee or United States Person.
(B) In connection with any proposed Transfer of any Ownership
Interest in a Residual Certificate (other than in connection with the
initial issuance thereof or the transfer thereof among the Depositor
and its Affiliates), the Certificate Registrar shall require delivery
to it, and shall not register the Transfer of any Residual Certificate
until its receipt of, an affidavit and agreement substantially in the
form attached hereto as Exhibit C-1 (a "Transfer Affidavit and
Agreement") from the proposed Transferee, in form and substance
satisfactory to the Certificate Registrar, representing and warranting,
among other things, that such Transferee is a Permitted Transferee,
that it is not acquiring its Ownership Interest in the Residual
Certificate that is the subject of the proposed Transfer as a nominee,
trustee or agent for any Person that is not a Permitted Transferee,
that for so long as it retains its Ownership Interest in a Residual
Certificate it will endeavor to remain a Permitted Transferee, 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 and
Agreement by a proposed Transferee under clause (B) above, if the
Certificate Registrar has actual knowledge that the proposed Transferee
is not a Permitted Transferee, no Transfer of an Ownership Interest in
a Residual Certificate to such proposed Transferee shall be effected.
(D) Except in connection with the initial issuance of the
Residual Certificates or any transfer thereof among the Depositor and
its Affiliates, each Person holding or acquiring any Ownership Interest
in a Residual Certificate shall agree (1) to require a Transfer
Affidavit and Agreement 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
certificate substantially in the form attached hereto as Exhibit C-2
stating that, among other things, it has no actual knowledge that such
prospective Transferee is not a Permitted Transferee.
(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 Special
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.
(iii) The REMIC Administrator shall make available to the
Internal Revenue Service and those Persons specified by the REMIC
Provisions 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 a nominee, agent or middleman
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. The Person holding such Ownership
Interest shall be responsible for the reasonable compensation of the REMIC
Administrator for providing such information.
(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 Registrar
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 owning a beneficial interest in a
Non-Registered Certificate may cause the Certificate Registrar to request that
the Depository exchange 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, execute and
deliver at such offices 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.
(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, Class E, Class X-1 or Class X-2
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.
(g) Every Certificate presented or surrendered for transfer or exchange
shall (if so required by the Certificate Registrar) be duly endorsed by, or be
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder thereof or his attorney duly
authorized in writing.
(h) No service charge shall be imposed for any transfer or exchange of
Certificates, but the Trustee or the Certificate Registrar may require payment
of a sum sufficient to cover any tax or other governmental charge that may be
imposed in connection with any transfer or exchange of Certificates. In
addition, 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.
(i) Subsequent to the initial issuance of the Certificates, the Trustee
shall be responsible for the preparation of physical Certificates in connection
with any transfer or exchange; provided that the correct form of Certificate of
each Class shall be provided by the Depositor to the Trustee on diskette on or
about the Closing Date. All Certificates surrendered for transfer and exchange
shall be physically canceled by the Certificate Registrar, and the Certificate
Registrar shall hold or destroy such canceled Certificates in accordance with
its standard procedures.
(j) The Certificate Registrar shall be required to provide the
Depositor and the REMIC Administrator with an updated copy of the Certificate
Register on or about January 1 of each year, commencing January 1, 1999, and
shall be required to provide the Depositor, the Master Servicer, the Special
Servicer or the REMIC Administrator with an updated copy of the Certificate
Register at other times promptly upon written request therefor.
(k) If a Person is acquiring any Non-Registered Certificate or interest
therein as a fiduciary or agent for one or more accounts, such Person shall be
required to deliver to the Certificate Registrar (or, in the case of a
Book-Entry Certificate, to the Certificate Owner that is transferring such
interest) a certification to the effect that, and such other evidence as may be
reasonably required by the Trustee (or such Certificate Owner) to confirm that,
it has (i) sole investment discretion with respect to each such account and (ii)
full power to make the acknowledgments, representations, warranties,
certification and agreements with respect to each such account as set forth in
subsections (b), (c) and (d), as applicable, of this Section 5.02.
SECTION 5.03 Book-Entry Certificates.
(a) The REMIC II Regular Certificates shall, in the case of each Class
thereof, 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 fully registered, physical Certificates ("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 each 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. Neither the Certificate Registrar nor the Trustee shall have
any responsibility to monitor or restrict the transfer of Ownership Interests in
Certificates through the book-entry facilities of the Depository.
(b) The Depositor, the Mortgage Loan Seller, the Trustee, the Master
Servicer, the Special Servicer, the REMIC Administrator 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.
If any party hereto requests from the Depository a list of the Depository
Participants in respect of any Class or Classes of the Book-Entry Certificates,
the cost thereof shall be borne by the party on whose behalf such request is
made (but in no event shall any such cost be borne by the Trustee).
(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 any Class of 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 with respect to any Class of the Book-Entry
Certificates, the Certificate Registrar shall notify all affected Certificate
Owners, through the Depository, of the occurrence of any such event and of the
availability of Definitive Certificates to such Certificate Owners requesting
the same. Upon surrender to the Certificate Registrar of any Class of the
Book-Entry Certificates by the Depository, accompanied by registration
instructions for registration of transfer, the Trustee shall execute, and the
Certificate Registrar shall authenticate and deliver, the appropriate Definitive
Certificates to the Certificate Owners identified in such instructions. None of
the Depositor, the Mortgage Loan Seller, the Master Servicer, the Special
Servicer, the Trustee, 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 any Class of Registered Certificates, the registered holders of
such 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 (i) 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.
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) 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.
(f) 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(f).
Upon receipt by the Certificate Registrar at the Registrar 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 is 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.
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
reasonably 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 applicable REMIC created hereunder, 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 presentment for registration of transfer, the Depositor,
the Mortgage Loan Seller, 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 any 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, and none of the
Depositor, the Mortgage Loan Seller, 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.
SECTION 5.06 Certification by Certificate Owners.
(a) Each Certificate Owner is hereby deemed by virtue of its
acquisition of an Ownership Interest in the Book-Entry Certificates to agree to
comply with the applicable transfer requirements of Sections 5.02(b) and
5.02(c).
(b) To the extent that under the terms of this Agreement, it is
necessary to determine whether any Person is a Certificate Owner, the Trustee
shall make such determination based on a certificate of such Person which shall
specify, in reasonable detail satisfactory to the Trustee, the Class and
Certificate Principal Balance or Certificate Notional Amount, as the case may
be, of the Book-Entry Certificate beneficially owned, the value of such Person's
interest in such Certificate and any intermediaries through which such Person's
Ownership Interest in such Book-Entry Certificate is held; provided, however,
that the Trustee shall not knowingly recognize such Person as a Certificate
Owner if such Person, to the knowledge of a Responsible Officer of the Trustee,
acquired its Ownership Interest in a Book-Entry Certificate in violation of
Section 5.02(b) and/or Section 5.02(c), or if such Person's certification that
it is a Certificate Owner is in direct conflict with information obtained by the
Trustee from the Depository, Depository Participants, and/or indirect
participating brokerage firms for which a Depository Participant acts as agent,
with respect to the identity of a Certificate Owner. The Trustee shall exercise
its reasonable discretion in making any determination under this Section 5.06(b)
and shall afford any Person providing information with respect to its beneficial
ownership of any Certificates an opportunity to resolve any discrepancies
between the information provided and any other information available to the
Trustee.
<PAGE>
ARTICLE VI
THE DEPOSITOR, THE MORTGAGE LOAN SELLER, THE MASTER SERVICER,
THE SPECIAL SERVICER AND THE REMIC ADMINISTRATOR
SECTION 6.01 Liability of the Depositor, the Mortgage Loan
Seller, the Master Servicer, the Special Servicer
and the REMIC Administrator.
The Depositor, the Mortgage Loan Seller, 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 Mortgage Loan Seller, the Master
Servicer, the Special Servicer and the REMIC Administrator herein.
SECTION 6.02 Merger, Consolidation or Conversion of the Depositor, the
Mortgage Loan Seller, the Master Servicer, the Special
Servicer or the REMIC Administrator.
Subject to the following paragraph, the Depositor, the Mortgage Loan
Seller, the Master Servicer, the Special Servicer and the REMIC Administrator
each will keep in full effect its existence, rights and franchises as a
corporation or other business organization under the laws of the jurisdiction of
its organization, and each will obtain and preserve its qualification to do
business as a foreign corporation or otherwise 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.
The Depositor, the Mortgage Loan Seller, the Master Servicer, the
Special Servicer and the REMIC Administrator each may be merged or consolidated
with or into any Person, or transfer all or substantially all of its assets
(which, as to the Master Servicer and the Special Servicer, may be limited to
all or substantially all of its assets relating to the business of mortgage loan
servicing) to any Person, in which case any Person resulting from any merger or
consolidation to which the Depositor, the Mortgage Loan Seller, 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 Mortgage Loan
Seller, the Master Servicer, the Special Servicer or the REMIC Administrator,
shall be the successor of the Depositor, the Mortgage Loan Seller, the Master
Servicer, the Special Servicer or the REMIC Administrator, as the case may be,
hereunder, 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; provided, however, that no successor or surviving Person shall
succeed to the rights of the Master Servicer, the Special Servicer, or the
Mortgage Loan Seller unless such succession will not result in any withdrawal,
downgrade or qualification of the rating then assigned by any Rating Agency to
any Class of Certificates (as confirmed in writing).
Notwithstanding the foregoing, the parties hereto agree that Midland
Loan Services, Inc., a Delaware corporation and a wholly owned subsidiary of PNC
Bank, National Association, shall be the successor to the Master Servicer
hereunder, upon and subject to the acquisition by Midland Loan Services, Inc. of
substantially all of the assets of the Master Servicer, and thereafter Midland
Loan Services, Inc., shall assume all of the Master Servicer's rights, duties,
obligations and liabilities hereunder, without further consent by the parties
hereto, the Certificateholders or any confirmation by the Rating Agencies.
SECTION 6.03 Limitation on Liability of the Depositor, the
Master Servicer, the Special Servicer, the REMIC
Administrator and Others.
None of the Depositor, the Master Servicer (or its general partner),
the Special Servicer, the REMIC Administrator or any director, officer, employee
or agent of any of the foregoing shall be under any liability to the Trust or
the Certificateholders for any action taken, or not taken, 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 (or its
general partner), the Special Servicer, the REMIC Administrator or any such
other Person against any breach of a representation or warranty made herein, or
against any expense or liability specifically required to be borne thereby
pursuant to the terms hereof, or against any liability which would otherwise be
imposed by reason of willful misfeasance, bad faith or negligence in the
performance of obligations or duties hereunder, or by reason of negligent
disregard of such obligations and duties. The Depositor, the Master Servicer
(and its general partner), the Special Servicer, the REMIC Administrator and any
director, officer, employee or agent of any of the foregoing 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 (and its general partner), the Special Servicer, the REMIC
Administrator 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, the Certificates or any asset of the Trust, other than any loss,
liability or expense: (i) specifically required to be borne by such Person
pursuant to the terms hereof, including, without limitation, Section 10.01(h);
(ii) incidental to the performance of obligations and duties hereunder,
including, without limitation, in the case of the Master Servicer or the Special
Servicer, the prosecution of an enforcement action in respect of any specific
Mortgage Loan or Mortgage Loans (except as any such loss, liability or expense
shall be otherwise reimbursable pursuant to this Agreement); or (iii) which was
incurred in connection with claims against such party resulting from (A) any
breach of a representation or warranty made herein by such party, (B) willful
misfeasance, bad faith or negligence in the performance of obligations or duties
hereunder by such party, or from negligent disregard of such obligations or
duties, or (C) any violation by such party of any state or federal securities
law. None of the Depositor, the Master Servicer, the Special Servicer or the
REMIC Administrator shall be under any obligation to appear in, prosecute or
defend any legal action unless such action is related to its respective duties
under this Agreement and, except in the case of a legal action contemplated by
Section 3.22, in its opinion does not involve it in any ultimate expense or
liability; provided, however, that the Depositor, the Master Servicer, the
Special Servicer or the REMIC Administrator may in its discretion undertake any
such action which it may deem necessary or desirable with respect to the
enforcement and/or protection of 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, and any liability resulting therefrom, shall
be expenses, costs and liabilities of the Trust, and the Depositor, the Master
Servicer, the Special Servicer and the REMIC Administrator each shall be
entitled to the direct payment of such expenses or to be reimbursed therefor
from the Certificate Account as provided in Section 3.05(a).
SECTION 6.04 Master Servicer, Special Servicer and REMIC Administrator
Not to Resign.
None of the Master Servicer, the Special Servicer or the REMIC
Administrator shall be permitted to resign from the obligations and duties
hereby imposed on it, except (i) upon the appointment of, and the acceptance of
such appointment by, a successor thereto which is reasonably acceptable to the
Trustee and the receipt by the Trustee of written confirmation from each and
every Rating Agency to the effect that such resignation and appointment will not
result in the downgrade, qualification or withdrawal of any rating then assigned
by such Rating Agency to any Class of Certificates, or (ii) upon determination
that such obligations and duties hereunder are no longer permissible under
applicable law or are in material conflict by reason of applicable law with any
other activities carried on by it, the other activities of the Master Servicer,
Special Servicer or REMIC Administrator, as the case may be, so causing such a
conflict being of a type and nature carried on by the Master Servicer, Special
Servicer or REMIC Administrator, as the case may be, at the date of this
Agreement. Any such determination of the nature described in clause (ii) of the
preceding sentence permitting the resignation of the Master Servicer, the
Special Servicer or the REMIC Administrator, as the case may be, shall be
evidenced by an Opinion of Counsel to such effect which shall be rendered by
Independent counsel, be addressed and delivered to the Trustee and the Rating
Agencies and be paid for by the resigning party. No such resignation for either
reason shall become effective until the Trustee or other successor shall have
assumed the responsibilities and obligations of the resigning party hereunder.
All costs and expenses of the Trustee and the Trust (including, without
limitation, any costs or expenses of any party hereto reimbursable out of the
Trust Fund) in connection with any such resignation (including, without
limitation, any requisite transfer of servicing) shall be paid for, as incurred,
by the resigning party.
Consistent with the foregoing, none of the Master Servicer, the Special
Servicer or the REMIC Administrator shall be permitted, except as expressly
provided herein, to assign or transfer any of its rights, benefits or privileges
hereunder to any other Person, or delegate to or subcontract with, or authorize
or appoint any other Person to perform any of the duties, covenants or
obligations to be performed by it hereunder. If, pursuant to any provision
hereof, the duties of the Master Servicer, the Special Servicer or the REMIC
Administrator are transferred to a successor thereto, then, subject to Section
3.22, the entire amount of compensation payable to the Master Servicer, the
Special Servicer or the REMIC Administrator, as the case may be, pursuant hereto
shall thereafter be payable to such successor.
SECTION 6.05 Rights of the Depositor and the Trustee in
Respect of the Master Servicer, the Special
Servicer and the REMIC Administrator.
The Master Servicer, the Special Servicer and the REMIC Administrator
each shall afford the Depositor and the Trustee, upon reasonable notice, during
normal business hours access to all records maintained by the Master Servicer,
the Special Servicer or the REMIC Administrator, as the case may be, in respect
of its rights and obligations hereunder and access to such of its officers as
are responsible for such obligations. Upon reasonable request, the Master
Servicer, the Special Servicer and the REMIC Administrator each shall furnish
the Depositor and the Trustee with its most recent financial statements and such
other information as it possesses, and which it is not prohibited by law or, to
the extent applicable, binding obligations to third parties with respect to
confidentiality from disclosing, regarding its business, affairs, property and
condition, financial or otherwise. 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 or the REMIC Administrator hereunder or, in connection with
a default thereby, exercise the rights of the Master Servicer, the Special
Servicer or the REMIC Administrator hereunder; provided, however, that none of
the Master Servicer, the Special Servicer or the REMIC Administrator shall 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 or the REMIC Administrator and is not obligated to supervise
the performance of the Master Servicer, the Special Servicer or the REMIC
Administrator under this Agreement or otherwise.
<PAGE>
ARTICLE VII
DEFAULT
SECTION 7.01 Events of Default.
(a) "Event of Default", wherever used herein, unless the context
otherwise requires, means any one of the following events:
(i) any failure by the Master Servicer to deposit into the
Certificate Account any amount required to be so deposited under this
Agreement which continues unremedied for two Business Days following
the date on which such deposit was first required to be made, or any
failure by the Master Servicer to deposit into, or to remit to the
Trustee for deposit into, the Distribution Account on any Master
Servicer Remittance Date, the full amount of any Master Servicer
Remittance Amount required to be so deposited or remitted under this
Agreement on such date; or
(ii) any failure by the Special Servicer to deposit into, or
to remit to the Master Servicer for deposit into, the Certificate
Account or the REO Account any amount required to be so deposited or
remitted under this Agreement which continues unremedied for two
Business Days following the date on which such deposit or remittance
was first required to be made; or
(iii) any failure by the Master Servicer to remit to the
Trustee for deposit into the Distribution Account, on any Master
Servicer Remittance Date, the full amount of P&I Advances required to
be made on such date; or
(iv) any failure by the Master Servicer to timely make any
Servicing Advance required to be made by it pursuant to this Agreement,
which failure continues unremedied for a period of one Business Day
following the date on which notice shall have been given to the Master
Servicer by the Trustee as provided in Section 3.11(e); or
(v) any failure by the Special Servicer to timely make (or
timely direct the Master Servicer to make) any Servicing Advance
required to be made by it or the Master servicer at its direction
pursuant to this Agreement, which failure continues unremedied for a
period of one Business Day following the date on which notice has been
given to the Special Servicer by the Trustee as provided in Section
3.11(e); or
(vi) 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 thereof contained in this
Agreement, which failure 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 Master Servicer or
the Special Servicer, as the case may be, by any other party hereto, or
to the Master Servicer or the Special Servicer, as the case may be,
with a copy to each other party hereto, by the Holders of Certificates
entitled to at least 25% of the Voting Rights; or
(vii) 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 failure 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
(viii) any breach on the part of the Master Servicer, the
Special Servicer or the REMIC Administrator of any representation or
warranty thereof contained in this Agreement 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 any other party hereto, or
to the Master Servicer, the Special Servicer or the REMIC
Administrator, as the case may be, with a copy to each other party
hereto, by the Holders of Certificates entitled to at least 25% of the
Voting Rights; or
(ix) 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
(x) 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 it or of or relating to all or
substantially all of its property; or
(xi) 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
(xii) the Trustee shall have received written notice from any
Rating Agency that the continuation of the Master Servicer or the
Special Servicer in such capacity would result (or the continuation of
the Master Servicer or the Special Servicer in such capacity has
resulted) in a downgrade, qualification or withdrawal of any rating
then assigned by such Rating Agency to any Class of Certificates.
Each Event of Default listed above as items (iv) through (xii) shall constitute
an Event of Default only with respect to the relevant party; provided that if a
single entity acts or any two or more Affiliates act as Master Servicer, Special
Servicer and REMIC Administrator, or in any two or more of the foregoing
capacities, an Event of Default in one capacity (other than an event described
in clause (xii)) will constitute an Event of Default in each such capacity.
(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 the Event of Default shall not have been remedied, the
Depositor or the Trustee may, and at the written direction of the Holders of
Certificates entitled to at least 51% of the Voting Rights or if the relevant
Event of Default is the one described in clause (xii) of subsection (a) above,
the Trustee shall, terminate, by notice in writing to the Defaulting Party (with
a copy of such notice to each other party hereto), all of the rights and
obligations (subject to Section 3.11, accruing from and after such notice) of
the Defaulting Party under this Agreement and in and to the Mortgage Loans and
the proceeds thereof. 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
the 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 reasonably requested thereby to enable the
Trustee 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, the Distribution Account, any
Servicing Account or any Reserve Account (if it is the Defaulting Party) or by
the Special Servicer to the REO Account, the Certificate Account, any Servicing
Account or any Reserve Account (if it is the Defaulting Party) or thereafter be
received with respect to the Mortgage Loans and any REO Properties (provided,
however, that the Master Servicer and the Special Servicer each shall, if
terminated pursuant to this Section 7.01(b), continue to be obligated for or
entitled to receive all amounts accrued or owing by or to it under this
Agreement on or prior to the date of such termination, whether in respect of
Advances 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). All costs and expenses of the Trustee and the Trust
(including, without limitation, any costs and expenses of any party hereto
reimbursable out of the Trust Fund) in connection with the termination of the
Master Servicer or Special Servicer, as applicable, under this Section 7.01(b)
(including, without limitation, the requisite transfer of servicing) shall be
paid for, as incurred, by the Defaulting Party.
(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 Depositor or the Trustee
may, and at the written direction of the Holders of Certificates entitled to at
least 51% of the Voting Rights, the Trustee (or, if the Trustee is also the
REMIC Administrator, the Master Servicer) 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 (or if the Trustee is also the REMIC Administrator, from and after such
time as another successor appointed as contemplated by Section 7.02 accepts such
appointment), all authority and power of the REMIC Administrator under this
Agreement shall pass to and be vested in the Trustee (or such other successor)
pursuant to and under this Section, and, without limitation, the Trustee (or
such other successor) 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 (or, if the Trustee is
also the REMIC Administrator, such other successor appointed as contemplated by
Section 7.02) with all documents and records requested thereby to enable the
Trustee (or such other successor) to assume the REMIC Administrator's functions
hereunder, and to cooperate with the Trustee (or such other successor) in
effecting the termination of the REMIC Administrator's responsibilities and
rights hereunder (provided, however, that the REMIC Administrator shall continue
to be obligated for or entitled to receive all amounts accrued or owing by or to
it under this Agreement on or prior to the date of such termination, 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).
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 clause (ii) of the 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 (unless it has also been acting as such) 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 cooperate or to provide information or monies
required by Section 7.01 shall not be considered a default by the Trustee
hereunder. Neither the Trustee nor any other successor shall 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 nor any other successor be required to
purchase any Mortgage Loan hereunder. As compensation therefor, the Trustee
shall be entitled to all fees and other compensation, (subject to Section 3.11)
which the resigning or terminated party would have been entitled to for future
services rendered 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 is not approved by each and
every Rating Agency as an acceptable master servicer or special servicer, as the
case may be, of commercial mortgage loans, 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 REMIC Administrator is the resigning or terminated party and
the Trustee had been acting in such capacity, promptly appoint, or petition a
court of competent jurisdiction to appoint, any established and qualified
institution 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;
provided that such appointment does not result in the downgrading, qualification
or withdrawal of any rating then assigned by any Rating Agency to any Class of
Certificates (as evidenced by written confirmation thereof from each Rating
Agency). 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. Subject to Section 3.11 and
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 or in respect of the Mortgage Loans or otherwise as it and such
successor shall agree; provided, however, that no such compensation shall be in
excess of that permitted the resigning or terminated party hereunder. 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. Any costs and expenses associated with the transfer of the
foregoing functions under this Agreement (other than the set-up costs of the
successor) shall be borne by the predecessor Master Servicer, Special Servicer
or REMIC Administrator, as applicable, and, if not paid by such predecessor
Master Servicer, Special Servicer or REMIC Administrator within thirty days of
its receipt of an invoice therefor, shall be an expense of the Trust; provided
that such predecessor Master Servicer, Special Servicer or REMIC Administrator
shall reimburse the Trust for any such expense so incurred by the Trust; and
provided, further, that the Trustee shall decide whether and to what extent it
is in the best interest of the Certificateholders to pursue any remedy against
any party obligated to make such reimbursement.
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 6.04 or 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 has actual
knowledge, or would be deemed in accordance with Section 8.02(vii) to have
notice of the occurrence of such an event, the Trustee shall transmit by mail to
the other non-defaulting parties hereto and all Certificateholders notice of
such occurrence, unless such default shall have been cured.
SECTION 7.04 Waiver of Events of Default.
The Holders entitled to at least 66-2/3% of the Voting Rights allocated
to each of the Classes of Certificates affected by any Event of Default
hereunder may waive such Event of Default, except that prior to any waiver of an
Event of Default arising from a failure to make P&I Advances, the Trustee shall
be reimbursed all amounts which it has advanced. 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 (provided that neither the Depositor
nor any Affiliate thereof is the party in respect of which such Event of Default
exists) 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.
SECTION 7.05 Additional Remedies of Trustee Upon Event of Default.
During the continuance of any Event of Default, so long as such Event
of Default shall not have been remedied, the Trustee, in addition to the rights
specified in Section 7.01, shall have the right, in its own name and as trustee
of an express trust, to take all actions now or hereafter existing at law, in
equity or by statute to enforce its rights and remedies and to protect the
interests, and enforce the rights and remedies, of the Certificateholders
(including the institution and prosecution of all judicial, administrative and
other proceedings and the filings of proofs of claim and debt in connection
therewith). Except as otherwise expressly provided in this Agreement, no remedy
provided for by this Agreement shall be exclusive of any other remedy, and each
and every remedy shall be cumulative and in addition to any other remedy, and no
delay or omission to exercise any right or remedy shall impair any such right or
remedy or shall be deemed to be a waiver of any Event of Default.
<PAGE>
ARTICLE VIII
CONCERNING THE TRUSTEE
SECTION 8.01 Duties of Trustee.
(a) The Trustee, prior to the occurrence of an Event of Default
hereunder and after the curing or waiver of all such Events of Default and
defaults which may have occurred, undertakes to perform such duties and only
such duties as are specifically set forth in this Agreement; provided that it is
herein acknowledged and agreed that the Trustee is at all times acting in a
fiduciary capacity with respect to the Certificateholders. If an Event of
Default hereunder occurs and is continuing, the Trustee shall exercise such of
the rights and powers vested in it by this Agreement and applicable law, and use
the same degree of care and skill in their exercise as a prudent man or the
Trustee would exercise or use under the circumstances in the conduct of his or
its own affairs (whichever standard would be higher). 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 in form to the requirements of this Agreement. If
any such instrument is found not to so 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, but may assume and rely upon, the accuracy and 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) 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;
(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% (or, as to any particular matter, any higher
percentage as may be specifically provided for hereunder) 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.
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 hereunder 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;
(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 such 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 25% 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;
(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-in-fact, provided that the use of any such
agent or attorney-in-fact shall not relieve the Trustee from any of its
obligations hereunder, and the Trustee shall remain responsible for all
acts and omissions of any such agent or attorney-in-fact;
(vii) For all purposes under this Agreement, the Trustee shall
not be deemed to have notice of any Event of Default hereunder 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 or the REMIC
Administrator (unless the Trustee is acting as Master Servicer, Special
Servicer or REMIC Administrator, as the case may be) or for any act or
omission of the Depositor or the Mortgage Loan Seller.
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
representations and warranties of, and the other statements attributed to, the
Trustee in Article II and the certificate of authentication executed by the
Trustee as Certificate Registrar set forth on each outstanding Certificate)
shall be taken as the statements of the Depositor, the Mortgage Loan Seller, 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 (other than as specifically set forth in Sections 2.08 and 2.09) 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 or the Mortgage Loan
Seller in respect of the assignment of the Mortgage Loans to the Trust, 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 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 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, and any agent of
the Trustee may become the owner or pledgee of Certificates with, except as
otherwise provided in the definition of Certificateholder, the same rights it
would have if it were not the Trustee or such agent, as the case may be.
SECTION 8.05 Fees of Trustee; Indemnification of Trustee.
(a) The Trustee shall pay to itself on each Distribution Date, pursuant
to Section 3.05(b)(ii), from amounts on deposit in the Distribution Account, an
amount equal to the Trustee Fee for such Distribution Date and, to the extent
not previously received, for each prior Distribution Date.
(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 (to
the extent of amounts on deposit in the Certificate Account and the 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 legal actions relating to the exercise and
performance of any of the powers and duties of the Trustee hereunder; provided
that none of the Trustee or 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 routine duties in
accordance with any of the provisions hereof, (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.
SECTION 8.06 Eligibility Requirements for Trustee.
The Trustee hereunder shall at all times be a corporation, a trust
company, a bank or a banking association: (i) organized and doing business under
the laws of the United States of America or any State thereof or the District of
Columbia; (ii) authorized under such laws to exercise trust powers; (iii) having
a combined capital and surplus of at least $50,000,000; (iv) subject to
supervision or examination by federal or state authority; and (v) whose
long-term senior unsecured debt is rated not less than "Aa3" by Moody's, "A" by
DCR and "AA" by Fitch (or, in the case of each Rating Agency, such lower ratings
as would not, as confirmed in writing by such Rating Agency, result in a
qualification, downgrade or withdrawal of any of the then-current ratings
assigned by such Rating Agency to the Certificates). If such corporation, trust
company, bank or banking association 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 8.06, the combined
capital and surplus of such corporation, trust company, bank or banking
association shall be deemed to be its combined capital and surplus as set forth
in its most recent report of condition so published. No Person shall become a
successor trustee hereunder if the succession of such Person would result in a
qualification, downgrading or withdrawal of any of the ratings then assigned by
the Rating Agencies to the Certificates. 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, trust company, bank or banking association
serving as Trustee may have normal banking and trust relationships with the
Depositor, the Mortgage Loan Seller, 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
Mortgage Loan Seller, 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 Mortgage Loan Seller, 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 Mortgage
Loan Seller, the Master Servicer, the Special Servicer, the REMIC Administrator
and the Certificateholders by the Depositor.
(c) The Holders of Certificates entitled to at least 33 1/3% 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; provided that the
Master Servicer, the Depositor and the remaining Certificateholders shall have
been notified; and provided further that other Holders of the Certificates
entitled to a greater percentage of the Voting Rights shall not have objected to
such removal in writing to the Master Servicer and the Depositor within 30 days
of their receipt of notice thereof. A copy of such instrument shall be delivered
to the Depositor, the Mortgage Loan Seller, 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; and no such resignation or removal of the Trustee
and/or appointment of a successor trustee shall be permitted, unless, as
confirmed in writing by each Rating Agency, such resignation or removal and
appointment would not result in the qualification, downgrading or withdrawal of
the rating assigned by any Rating Agency to any Class of Certificates.
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 Mortgage Loan Seller, 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 and related documents and statements at
the time held on its behalf by a Custodian, which Custodian shall become the
agent of the successor trustee), and the Depositor, the Mortgage Loan Seller,
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. If such predecessor trustee was removed as Trustee under this
Agreement without cause, the cost of any such execution, delivery or action
shall be at the expense of the Trust.
(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.
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 corporate trust business of the Trustee, shall be the successor of the
Trustee, hereunder, 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; provided that the Trustee shall continue to be eligible under
the provisions of Section 8.06. The successor to the Trustee shall promptly
notify in writing each of the other parties hereto, the Certificateholders and
the Rating Agencies of any such merger, conversion, consolidation or succession
to business.
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 in respect of the Master
Servicer 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.
(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, responsibilities or
liabilities 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; provided that if the Custodian is an Affiliate of the Trustee such
consent of the Master Servicer need not be obtained and the Trustee shall
instead notify the Master Servicer of such appointment. Each Custodian shall be
a depository institution subject to supervision by federal or state authority,
shall have combined capital and surplus (or shall have its performance
guaranteed by an Affiliate with a combined capital and surplus) of at least
$10,000,000, shall be qualified to do business in the jurisdiction in which it
holds any Mortgage File and shall not be the Depositor, the Mortgage Loan Seller
or any Affiliate of any of them. 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 duties, liabilities or obligations hereunder, and the Trustee shall remain
responsible for all acts and omissions of any Custodian.
SECTION 8.12 Access to Certain Information.
(a) The Trustee shall provide or cause to be provided to the Depositor,
the Master Servicer, the Special Servicer and the Rating Agencies, and to the
OTS, the FDIC, and any other federal or state banking or insurance regulatory
authority that may exercise authority over any Certificateholder, access to the
Mortgage Files and any other documentation regarding the Mortgage Loans and the
Trust Fund, that is 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 Trustee designated by it.
(b) Promptly following the first sale of any Non-Registered Certificate
to an Independent third party, the Depositor shall provide to the Trustee 10
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 10 copies of the private placement memorandum or
disclosure document, as revised, amended or supplemented. The Trustee shall
maintain at its Corporate Trust Office and shall on behalf of the Depositor,
upon reasonable advance written notice, make available during normal business
hours for review by each Rating Agency and by any Certificateholder or any
Certificate Owner or any Person identified to the Trustee by a Certificateholder
or a Certificate Owner as a prospective transferee of a Certificate or interest
therein, 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) all Officer's Certificates
delivered to the Trustee since the Closing Date pursuant to Section 3.13, (B)
all accountants' reports delivered to the Trustee since the Closing Date
pursuant to Section 3.14, (C) the most recent inspection report, together with
any related additional written or electronic information, prepared or obtained
by, or on behalf of, the Master Servicer or Special Servicer, as the case may
be, and delivered to the Trustee in respect of each Mortgaged Property pursuant
to Section 3.12(a), (D) all Mortgagor financial statements and Mortgaged
Property operating statements and rent rolls, together with any related
additional written or electronic information, delivered to the Trustee by the
Master Servicer or the Special Servicer pursuant to Section 3.12(b), (E) any and
all notices and reports 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 or that any remedial, corrective or other further action contemplated
in such clauses is required (but only for so long as such Mortgaged Property or
the related Mortgage Loan is part of the Trust Fund), (F) all documents
constituting the Mortgage Files, including, without limitation, 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, in each case, only for so long as the related
Mortgage Loan is part of the Trust Fund) and (G) any Asset Status Report. Copies
of any and all of the foregoing items are to be available from the Trustee upon
request; however, the Trustee shall be permitted to require payment of a sum
sufficient to cover the reasonable costs and expenses of providing such service.
In connection with providing access to or copies of the items described
in the immediately preceding paragraph of this Section 8.12(b), the Trustee may
require, unless the Depositor directs otherwise, (i) in the case of Certificate
Owners, a written confirmation executed by the requesting Person, in form
reasonably satisfactory to the Trustee, generally to the effect that such Person
is a beneficial holder of Certificates and will keep such information
confidential and (ii) in the case of any prospective purchaser of a Certificate
or, in the case of a Book-Entry Certificate, of a beneficial ownership interest
therein, a written confirmation executed by the requesting Person, in form
reasonably satisfactory to the Trustee, generally to the effect that such Person
is a prospective purchaser of a Certificate or a beneficial ownership interest
therein, is requesting the information for use in evaluating a possible
investment in Certificates and will otherwise keep such information
confidential. All Certificateholders, by acceptance of their Certificates, shall
be deemed to have agreed to keep such information confidential, except to the
extent that the Depositor grants written permission to the contrary.
Notwithstanding the preceding sentences of this paragraph, the Trustee shall
have no responsibility for the accuracy, completeness or sufficiency of any
information so made available or furnished by it in the manner described in the
immediately preceding paragraph.
SECTION 8.13 Filings with the Securities and Exchange Commission.
The Trustee shall, at the expense of the Depositor, prepare for filing,
execute and properly file with the Commission, any and all reports, statements
and information, including, without limitation, Distribution Date Statements,
Delinquent Loan Status Reports, REO Status Reports, Historical Loan Modification
Reports, Special Servicer Loan Status Reports, Historical Loss Reports and
Operating Statement Analyses, respecting the Trust Fund and/or the Certificates
required or specifically provided herein to be filed on behalf of the Trust
under the Exchange Act; provided that such items shall have been received by the
Trustee (to the extent not generated by the Trustee) in the format required for
electronic filing via the EDGAR system; and provided, further, that any such
items that are required to be delivered by the Master Servicer or the Special
Servicer to the Trustee shall be so delivered in the format required for
electronic filing via the EDGAR system (in addition to any other required
format). The Trustee shall have no responsibility to file any such items that
have not been received in such EDGAR-compatible format nor shall it have any
responsibility to convert any items to such format. The Depositor shall promptly
file, and exercise its reasonable best efforts to obtain a favorable response
to, no-action requests to, or requests for other appropriate exemptive relief
from, the Commission regarding the usual and customary exemption from certain
reporting requirements granted to issuers of securities similar to the
Certificates.
<PAGE>
ARTICLE IX
TERMINATION
SECTION 9.01 Termination Upon Repurchase or Liquidation
of All Mortgage Loans.
Subject to Section 9.02, the Trust and the respective obligations and
responsibilities under this Agreement of the Depositor, the Mortgage Loan
Seller, the Master Servicer, the Special Servicer, the Trustee and the REMIC
Administrator (other than the obligations of the Trustee to provide for and make
payments to Certificateholders as hereafter set forth and the obligations of the
REMIC Administrator to file the final Tax Returns for REMIC I and REMIC II and
to maintain the books and records thereof for a commercially reasonable period)
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 by any Majority
Certificateholder of the Controlling Class (other than the Depositor or the
Mortgage Loan Seller) of all Mortgage Loans and each REO Property remaining in
REMIC I at a price (to be calculated by the Master Servicer and the Trustee as
of the close of business on the third Business Day preceding the date upon which
notice of any such purchase is furnished to Certificateholders pursuant to the
third paragraph of this Section 9.01 and as if the purchase was to occur on such
Business Day) equal to (A) the aggregate Purchase Price of all the Mortgage
Loans included in REMIC I, plus (B) the appraised value of each REO Property, if
any, included in REMIC I (such appraisal to be conducted by a Qualified
Appraiser selected by the Master Servicer and approved by the Trustee), minus
(C) if such purchase is being made by the Master Servicer, the aggregate amount
of unreimbursed Advances made by the Master Servicer, together with any Advance
Interest payable to the Master Servicer in respect of such Advances 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 REMIC I;
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, living on the date hereof.
The Majority Certificateholder of the Controlling Class (other than the
Depositor or the Mortgage Loan Seller) has the right, and if the Majority
Certificateholder of the Controlling Class fails to exercise such right, the
Master Servicer has the right, to purchase all of the Mortgage Loans and each
REO Property remaining in REMIC I 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 and any Majority Certificateholder of the Controlling Class
(other than the Depositor or the Mortgage Loan Seller) each may so elect to
purchase all of the Mortgage Loans and each REO Property remaining in REMIC I
only if the aggregate Stated Principal Balance of the Mortgage Pool at the time
of such election is less than 1.0% of the Initial Pool Balance. In the event
that the Master Servicer or any Majority Certificateholder of the Class (other
than the Depositor or the Mortgage Loan Seller) elects to purchase all of the
Mortgage Loans and each REO Property remaining in REMIC I in accordance with the
preceding sentence, the Master Servicer or such Majority Certificateholder, as
applicable, shall deposit in the Distribution Account not later than the Master
Servicer Remittance 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 all amounts required to be
transferred to the Distribution Account on such Master Servicer Remittance Date
from the Certificate Account pursuant to the first paragraph of Section 3.04(b).
Upon confirmation that such final deposits have been made, the Trustee shall
release or cause to be released to the purchaser or its designee, the Mortgage
Files for the remaining Mortgage Loans and shall execute all assignments,
endorsements and other instruments furnished to it by the purchaser, as shall be
necessary to effectuate transfer of the Mortgage Loans and REO Properties
remaining in REMIC I.
Notice of any termination shall be given promptly by the Trustee by
letter to Certificateholders 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 a purchase by the Master Servicer or any
Majority Certificateholder of the Controlling Class (other than the Depositor or
the Mortgage Loan Seller) of all of the Mortgage Loans and each REO Property
remaining in REMIC I, 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 5th day of such month, in each case specifying (i) the Distribution
Date upon which the Trust will terminate and final payment on 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.
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 Available
Distribution Amount for such date that is allocable to payments on the relevant
Class in accordance with Section 4.01(b). Final Distributions on the REMIC I
Regular Interests shall be made on such date as provided in Section 4.01(a).
Any funds not distributed to any Holder or Holders of Certificates of
any Class on the Final 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 9.01 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
reasonable 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 former Holder on any amount
held in trust hereunder. If by the second anniversary of the delivery of such
second notice, all of the Certificates shall not have been surrendered for
cancellation, the Class R-II Certificateholders shall be entitled to all
unclaimed funds and other assets which remain subject thereto.
SECTION 9.02 Additional Termination Requirements.
(a) In the event the Master Servicer or a Majority Certificateholder of
the Controlling Class (other than the Depositor or the Mortgage Loan Seller)
purchases all of the Mortgage Loans and each REO Property remaining in REMIC I
as provided in Section 9.01, the Trust (and, accordingly, REMIC I and REMIC II)
shall be terminated in accordance with the following additional requirements,
unless the Master Servicer or such Majority Certificateholder, as applicable,
obtains at its own expense and delivers to the Trustee and the REMIC
Administrator an Opinion of Counsel, addressed to the Trustee and the REMIC
Administrator, to the effect that the failure of the Trust to comply with the
requirements of this Section 9.02 will not result in the imposition of taxes on
"prohibited transactions" of REMIC I or REMIC II as defined in Section 860F of
the Code or cause REMIC I or REMIC II to fail to qualify as a REMIC at any time
that any Certificates are outstanding:
(i) the REMIC Administrator shall specify the first day in the
90-day liquidation period in a statement attached to the final Tax
Return for each of REMIC I and REMIC II pursuant to Treasury
Regulations Section 1.860F-1;
(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 REMIC I to the Master Servicer
or the Majority Certificateholder of the Controlling Class, as
applicable, for cash; and
(iii) at the time of the making of the final payment on the
Certificates, the Trustee shall distribute or credit, or cause to be
distributed or credited, to the Holders of the applicable Class of
Residual Certificates all cash on hand (other than cash retained to
meet claims), and each of REMIC I and REMIC II shall terminate at that
time.
(b) By their acceptance of Certificates, the Holders thereof hereby
agree to authorize the REMIC Administrator to specify the date of adoption of
the plan of complete liquidation of each of REMIC I and REMIC II in accordance
with the terms and conditions of this Agreement, which authorization shall be
binding upon all successor Certificateholders.
<PAGE>
ARTICLE X
ADDITIONAL REMIC PROVISIONS
SECTION 10.01 REMIC Administration.
(a) The REMIC Administrator shall elect to treat each of REMIC I and
REMIC II as a REMIC under the Code and, if necessary, under Applicable State
Law. Each such election will be made on Form 1066 or other appropriate federal
or state Tax Returns for the taxable year ending on the last day of the calendar
year in which the Certificates are issued.
(b) The REMIC I Regular Interests are hereby designated as the "regular
interests" (within the meaning of Section 860G(a)(1) of the Code), and the Class
R-I Certificates are hereby designated as the sole class of "residual interest"
(within the meaning of Section 860G(a)(2) of the Code), in REMIC I. The Class
X-1, Class X-2, Class A-1, Class A-2, Class A-3, Class B, Class C, Class D,
Class E, Class F, Class G, Class H, Class J and Class K Certificates are hereby
designated as the "regular interest" (within the meaning of Section 860G(a)(1)
of the Code), and the Class R-II Certificates are hereby designated as the sole
Class of "residual interest" (within the meaning of Section 860G(a)(2) of the
Code), in REMIC II. None of the REMIC Administrator, the Master Servicer, the
Special Servicer or the Trustee shall, to the extent it is within the control of
such Person, create or permit the creation of any other "interests" in either
REMIC I or REMIC II (within the meaning of Treasury regulation Section
1.860D-1(b)(1)).
(c) The Closing Date is hereby designated as the "startup day" of each
of REMIC I and REMIC II within the meaning of Section 860G(a)(9) of the Code.
The "latest possible maturity date", within the meaning of Treasury Regulations
Section 1.860G-1(a)(4)(iii) of the REMIC I Regular Interests and the REMIC II
Regular Certificates is March 2028, the Distribution Date following the latest
maturity date of any Mortgage Loan.
(d) The REMIC Administrator is hereby designated as agent for the Tax
Matters Person of each of REMIC I and REMIC II and shall: act on behalf of the
Trust in relation to any tax matter or controversy, represent the Trust in any
administrative or judicial proceeding relating to an examination or audit by any
governmental taxing authority, request an administrative adjustment as to any
taxable year of REMIC I or REMIC II, enter into settlement agreements with any
governmental taxing agency, extend any statute of limitations relating to any
tax item of REMIC I or REMIC II, and otherwise act on behalf of each of REMIC I
and REMIC II in relation to any tax matter or controversy involving such REMIC.
By their acceptance thereof, the Holders of the Residual Certificates hereby
agree to irrevocably appoint the REMIC Administrator as their agent to perform
all of the duties of the Tax Matters Person for REMIC I and REMIC II. Subject to
Section 10.01(h), the legal expenses and costs of any action described in this
subsection (d) and any liability resulting therefrom shall be expenses, costs
and liabilities of the Trust, and the REMIC Administrator shall be entitled to
be reimbursed therefor out of any amounts on deposit in the Distribution Account
as provided by Section 3.05(b).
(e) The REMIC Administrator shall prepare and file, and the Trustee
shall sign, all of the Tax Returns in respect of each of REMIC I and REMIC II.
The expenses of preparing and filing such returns shall be borne by the REMIC
Administrator without any right of reimbursement therefor.
(f) The REMIC Administrator shall perform on behalf of each of REMIC I
and REMIC II all reporting and other tax compliance duties that are the
responsibility of each such REMIC under the Code, the REMIC Provisions or other
compliance guidance issued by the IRS or any other taxing authority under
Applicable State Law. Included among such duties, the REMIC Administrator shall
provide to: (i) any Transferor of a Residual Certificate, such information as is
necessary for the application of any tax relating to the transfer of a Residual
Certificate to any Person who is not a Permitted Transferee; (ii) the
Certificateholders, such information or reports as are required by the Code or
the REMIC Provisions, including, without limitation, reports relating to
interest, original issue discount and market discount or premium (using the
Prepayment Assumption as required); and (iii) the IRS, the name, title, address
and telephone number of the Person who will serve as the representative of each
of REMIC I and REMIC II.
(g) The REMIC Administrator shall perform its duties more specifically
set forth hereunder in a manner consistent with maintaining the status of each
of REMIC I and REMIC II as a REMIC under the REMIC Provisions (and each of the
other parties hereto shall assist it, to the extent reasonably requested by it).
The REMIC Administrator shall not knowingly take (or cause either REMIC I or
REMIC II to take) any action or fail to take (or fail to cause to be taken) any
action within the scope of its duties more specifically set forth hereunder
that, under the REMIC Provisions, if taken or not taken, as the case may be,
could result in an Adverse REMIC Event with respect to either such REMIC, unless
the REMIC Administrator has received an Opinion of Counsel to the effect that
the contemplated action will not result in an Adverse REMIC Event. None of the
other parties hereto shall 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 REMIC I or REMIC II, or causing REMIC I or REMIC II to take any
action, that is not expressly permitted under the terms of this Agreement, each
of the other parties hereto will consult with the REMIC Administrator, in
writing, with respect to whether such action could cause an Adverse REMIC Event
to occur. None of the parties hereto shall take any such action or cause REMIC I
or REMIC II 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: (i) if such action that is not expressly permitted by
this Agreement would be of a material benefit to or otherwise in the best
interests of the Certificateholders as a whole, by the Trust and shall be paid
by the Trustee at the direction of the REMIC Administrator out of amounts on
deposit in the Distribution Account; and (ii) otherwise by the party seeking to
take the action not permitted by this Agreement.
(h) In the event that any tax is imposed on REMIC I or REMIC II,
including, without limitation, "prohibited transactions" taxes as defined in
Section 860F(a)(2) of the Code, any taxes on contributions to REMIC I or REMIC
II after the Startup Day pursuant to Section 860G(d) of the Code, and any other
tax imposed by the Code or any applicable provisions of state or local tax laws
(other than any tax permitted to be incurred by the Special Servicer pursuant to
Section 3.17(a)), such tax, together with all incidental costs and expenses
(including, without limitation, penalties and reasonable attorneys' fees), shall
be charged to and paid by: (i) the REMIC Administrator, if such tax arises out
of or results from a breach by the REMIC Administrator of any of its obligations
under this Article X; (ii) the Trustee, if such tax arises out of or results
from a breach by the Trustee of any of its obligations under this Article X;
(iii) the Master Servicer, if such tax arises out of or results from a breach by
the Master Servicer of any of its obligations under Article III or this Article
X; (iv) the Special Servicer, if such tax arises out of or results from a breach
by the Special Servicer of any of its obligations under Article III or this
Article X; or (v) the Trust in all other instances. Any tax permitted to be
incurred by the Special Servicer pursuant to Section 3.17(a) shall be charged to
and paid by the Trust. Any such amounts payable by the Trust in respect of taxes
shall be paid by the Trustee at the direction of the REMIC Administrator out of
amounts on deposit in the Distribution Account.
(i) The REMIC Administrator and, to the extent that records are
maintained thereby in the normal course of its business, each of the other
parties hereto shall, for federal income tax purposes, maintain books and
records with respect to each of REMIC I and REMIC II on a calendar year and on
an accrual basis. Such records with respect to REMIC I shall include, for each
Distribution Date, the applicable Uncertificated Principal Balance, REMIC I
Remittance Rate, and each category of distribution on or with respect to the
REMIC I Regular Interests.
(j) Following the Startup Day therefor, the Trustee shall not accept
any contributions of assets to REMIC I or REMIC II unless it shall have received
an Opinion of Counsel (at the expense of the party seeking to cause such
contribution) to the effect that the inclusion of such assets in such REMIC will
not cause: (i) such REMIC to fail to qualify as a REMIC at any time that any
Certificates are outstanding; or (ii) the imposition of any tax on such REMIC
under the REMIC Provisions or other applicable provisions of federal, state and
local law or ordinances.
(k) None of the REMIC Administrator, the Master Servicer, the Special
Servicer or the Trustee shall consent to or, to the extent it is within the
control of such Person, permit: (i) the sale or disposition of any of the
Mortgage Loans (except in connection with (A) a breach of any representation or
warranty of the Mortgage Loan Seller regarding the Mortgage Loans or as
otherwise provided for in Section 2.03, (B) the foreclosure, default or imminent
default of a Mortgage Loan, including but not limited to, the sale or other
disposition of a Mortgaged Property acquired by deed-in-lieu of foreclosure, (C)
the bankruptcy of REMIC I or REMIC II, or (D) the termination of the Trust
pursuant to Article IX of this Agreement); (ii) the sale or disposition of any
investments in the Certificate Account or the REO Account for gain; or (iii) the
acquisition of any assets for the Trust Fund (other than a Mortgaged Property
acquired through foreclosure, deed-in-lieu of foreclosure or otherwise in
respect of a defaulted Mortgage Loan and other than Permitted Investments
acquired in connection with the investment of funds in the Certificate Account
or the REO Account); in any event unless it has received an Opinion of Counsel
(from and at the expense of the party seeking to cause such sale, disposition,
or acquisition) to the effect that such sale, disposition, or acquisition will
not cause: (x) REMIC I or REMIC II to fail to qualify as a REMIC at any time
that any Certificates are outstanding; or (y) the imposition of any tax on REMIC
I or REMIC II under the REMIC Provisions or other applicable provisions of
federal, state and local law or ordinances.
(l) Except as otherwise permitted by Section 3.17(a), none of the REMIC
Administrator, the Master Servicer, the Special Servicer or the Trustee shall
enter into any arrangement by which REMIC I or REMIC II will receive a fee or
other compensation for services or, to the extent it is within the control of
such Person, permit REMIC I or REMIC II 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. At all
times as may be required by the Code, the REMIC Administrator shall make
reasonable efforts to ensure that substantially all of the assets of REMIC I and
REMIC II will consist of "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.
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 of the REMIC Administrator.
In the event the Trustee and the REMIC Administrator are not the same
Person, the Trustee covenants and agrees to pay to the REMIC Administrator from
time to time, and the REMIC Administrator shall be entitled to, reasonable
compensation (as set forth in a written agreement between the Trustee and the
REMIC Administrator) for all services rendered by it in the exercise and
performance of any of the obligations and duties of the REMIC Administrator
hereunder.
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-in-fact consented
to by the Trustee, which consent shall not be unreasonably withheld; provided
that the REMIC Administrator shall not be relieved of its liabilities, duties
and obligations hereunder by reason of the use of any such agent or
attorney-in-fact.
<PAGE>
ARTICLE XI
MISCELLANEOUS PROVISIONS
SECTION 11.01 Amendment.
(a) This Agreement may be amended from time to time by the mutual
agreement of the parties hereto, without the consent of any of the
Certificateholders, (i) to cure any ambiguity, (ii) to correct, modify or
supplement any provision herein which may be defective or may be inconsistent
with any other provision herein, (iii) to add any other provisions with respect
to matters or questions arising hereunder which shall not be inconsistent with
the provisions hereof, (iv) to relax or eliminate any requirement hereunder
imposed by the REMIC Provisions if the REMIC Provisions are amended or clarified
such that any such requirement may be relaxed or eliminated; (v) if such
amendment, as evidenced by an Opinion of Counsel delivered to the Trustee and
the REMIC Administrator, is reasonably necessary to comply with any requirements
imposed by the Code or any successor or amendatory statute or any temporary or
final regulation, revenue ruling, revenue procedure or other written official
announcement or interpretation relating to federal income tax laws or any such
proposed action which, if made effective, would apply retroactively to REMIC I
or REMIC II at least from the effective date of such amendment, or would be
necessary to avoid the occurrence of a prohibited transaction or to reduce the
incidence of any tax that would arise from any actions taken with respect to the
operation of REMIC I or REMIC II; (vi) to modify, add to or eliminate any
provisions of Section 5.02(d)(i), (ii) and (iii) as provided in Section
5.02(d)(iv); or (vii) for any other purpose; provided that such amendment (other
than any amendment for the specific purposes described in clauses (v) and (vi)
above) shall not, as evidenced by an Opinion of Counsel obtained by or delivered
to the Trustee, adversely affect in any material respect the interests of any
Certificateholder without such Certificateholder's written consent; and provided
further that such amendment (other than any amendment for any of the specific
purposes described in clauses (i) through (vi) above) shall not result in a
downgrade, qualification or withdrawal of any rating then assigned to any Class
of Certificates by any Rating Agency (as evidenced by written confirmation to
such effect from each Rating Agency obtained by or delivered to the Trustee).
(b) This Agreement may also be amended from time to time by the mutual
agreement of the parties hereto, with the consent of the Holders of Certificates
entitled to at least 51% of the Voting Rights allocated to the affected Classes,
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; provided, however, that no
such amendment shall (i) reduce in any manner the amount of, or delay the timing
of, payments received or advanced on the Mortgage Loans and any REO Properties
which are required to be distributed on any Certificate without the written
consent of the Holder of such Certificate, (ii) adversely affect in any material
respect the interests of the Holders of any Class of Certificates in a manner
other than as described in clause (b)(i) without the written consent of the
Holders of all Certificates of such Class, or (iii) modify the provisions of
this Section 11.01 without the written consent of the Holders of all
Certificates then outstanding. Notwithstanding any other provision of this
Agreement, for purposes of the giving or withholding of consents pursuant to
this Section 11.01, Certificates registered in the name of the Depositor, the
Mortgage Loan Seller, the Master Servicer, the Special Servicer or any of their
respective Affiliates shall be entitled to the same Voting Rights with respect
to matters described above as they would if any other Person held such
Certificates.
(c) Notwithstanding any contrary provision of this Agreement, neither
the Trustee nor the REMIC Administrator shall consent to any amendment to this
Agreement unless it shall first have obtained or been furnished with an Opinion
of Counsel to the effect that such amendment or the exercise of any power
granted to any party hereto in accordance with such amendment will not result in
the imposition of a tax on REMIC I or REMIC II pursuant to the REMIC Provisions
or cause REMIC I or REMIC II to fail to qualify as a REMIC at any time that any
Certificates are outstanding.
(d) Promptly after the execution of any such amendment, the Trustee
shall furnish a copy of the amendment to each Certificateholder.
(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; provided that such
consents shall be in writing.
(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 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 Distribution 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 Trust on direction by the
Trustee, but only upon direction accompanied by an Opinion of Counsel (the
reasonable cost of which may be paid out of the Distribution Account) to the
effect that such recordation materially and beneficially affects the interests
of the Certificateholders. It is acknowledged that the Trustee has no obligation
to monitor whether such recordation in necessary under this section.
(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, 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, 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.
(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 (except in the case of a default by the Trustee)
the Holders of Certificates entitled to at least 25% of the Voting Rights 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. 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.
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 when delivered to: (1) in the case of the Depositor, NationsLink
Funding Corporation, NationsBank Corporate Center, 100 North Tryon Street,
Charlotte, North Carolina 28255 Attention: David A. Gertner, telecopy number:
(704) 386-1094 (with copies to Robert W. Long, Esq., Assistant General Counsel,
NationsBank Corporation, NationsBank Corporate Center, 100 North Tryon Street
(20th Floor), Charlotte, North Carolina 28255, telecopy number: (704) 386-6453;
(2) in the case of the Mortgage Loan Seller, NationsBank, N.A., NationsBank
Corporate Center, NC1-007-07-01, 100 North Tryon Street, Charlotte, North
Carolina 28255, Attention: David Gertner, telecopy number: (704) 386-1904; (3)
in the case of the Master Servicer, Midland Loan Services, L.P., 210 West 10th
Street, 6th floor, Kansas City, Missouri, Attention: Alan Atterbury, telecopy
number (816) 435-2326; (with a copy to William A. Hirsch, Esq., Morrison &
Hecker L.L.P., 2600 Grand Avenue, Kansas City, Missouri 64108, telecopy number:
(816) 474-4208) (4) in the case of the Special Servicer, Lennar Partners, Inc.,
760 N.W. 107th Avenue, Miami, Florida 33172, Attention: Jeffrey Krasnoff,
telecopy number (305) 226-7691; (5) in the case of the Trustee and REMIC
Administrator, Norwest Bank Minnesota, National Association, 11000 Broken Land
Parkway, Columbia, Maryland 21044-3562, Attention: Corporate Trust Services
(CMBS), NationsLink Funding Corporation, Series 1998-1, telecopy number (410)
884-2360; and (6) in the case of the Rating Agencies, (A) Moody's Investors
Service, Inc., 99 Church Street, New York, New York 10007, Attention: Commercial
MBS Monitoring Department, telecopy number (212) 553-0300; (B) Fitch IBCA, Inc.,
One State Street Plaza, New York, New York 10004, Attention: Commercial Mortgage
Surveillance, telecopy number (212) 635-0295; (C) Duff & Phelps Credit Rating
Co., 55 East Monroe, Chicago, Illinois 60603, Attention: Structured
Finance--CMBS Monitoring Group, telecopy number (312) 263-2852, 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.
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.
SECTION 11.07 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. Except as
specifically contemplated by Sections 3.22, 3.24, 6.03 and 8.05, no other
person, including, without limitation, any Mortgagor, shall be entitled to any
benefit or equitable right, remedy or claim under this Agreement.
SECTION 11.08 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.
SECTION 11.09 Notices to and from Rating Agencies.
(a) The Trustee shall promptly 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 hereunder that has
not been cured;
(iii) the resignation or termination of the Master Servicer,
the Special Servicer or the REMIC Administrator and the appointment of
a successor;
(iv) any change in the location of the Distribution Account;
(v) the final payment to any Class of Certificateholders; and
(vi) the repurchase of any Mortgage Loan by the Mortgage Loan
Seller pursuant to Section 2.03.
(b) The Master Servicer shall promptly 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 and the
appointment of a successor;
(ii) any change in the location of the Certificate Account;
(iii) any event that would result in the voluntary or
involuntary termination of any insurance of the accounts of the
Trustee;
(iv) any material casualty at or condemnation or eminent
domain proceeding in respect of a Mortgaged Property; and
(v) the vacating by an anchor tenant of a retail Mortgaged
Property.
(c) Each of the Master Servicer and the Special Servicer, as the case
may be, shall furnish to each Rating Agency such information with respect to the
Mortgage Loans as the Rating Agency shall reasonably request and which the
Master Servicer or the Special Servicer, as the case may be, can reasonably
provide.
(d) 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; and
(ii) each of its annual independent public accountants'
servicing reports described in Section 3.14, if any.
In addition, as and to the extent required by Section 3.12(b), each of the
Master Servicer and the Special Servicer shall promptly furnish to each Rating
Agency copies or summaries (in such format as will be acceptable to the Rating
Agency) of any of the written reports (including, without limitation, reports
regarding property inspections) prepared, and any of the quarterly and annual
operating statements, rent rolls and financial statements collected, by it
pursuant to Section 3.12(b).
(e) The Trustee shall promptly furnish Fitch and, to the extent not
made available on the Trustee's Website, each other Rating Agency on a monthly
basis copies of the statements to the Holders of the REMIC II Regular
Certificates required by the first paragraph of Section 4.02(a).
(f) To the extent reasonably possible, all information and reports
delivered or made available to the Rating Agencies, or a Class F, Class G, Class
H, Class J and Class K Certificateholder (if requested by such Holder), by any
of the Trustee, the Master Servicer or the Special Servicer pursuant to this
Section 11.09, shall be so delivered or otherwise made available through an
electronic medium.
(g) Each Rating Agency shall provide to the Trustee, upon its request,
a listing of the then current rating on any Certificate then outstanding.
IN WITNESS WHEREOF, the parties hereto have caused their names to be
signed hereto by their respective officers or representatives thereunto duly
authorized, in each case as of the day and year first above written.
NATIONSLINK FUNDING CORPORATION,
Depositor
By:--------------------------------------
Name:
Title:
NATIONSBANK, N.A.,
Mortgage Loan Seller
By:--------------------------------------
Name:
Title:
MIDLAND LOAN SERVICES, L.P.,
Master Servicer
By: MIDLAND DATA SYSTEMS, INC.,
its sole General Partner
By:----------------------------
Name:
Title:
LENNAR PARTNERS, INC.,
Special Servicer
By:--------------------------------------
Name:
Title:
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION,
Trustee and REMIC Administrator
By:--------------------------------------
Name:
Title:
<PAGE>
STATE OF NORTH CAROLINA )
) ss.:
COUNTY OF MECKLENBURG )
On the --- day of March, 1998, before me, a notary public in and for
said State, personally appeared James E. Naumann known to me to be a Senior Vice
President of NATIONSLINK FUNDING CORPORATION and NATIONSBANK, N.A., two of the
entities that executed the within instrument, and also known to me to be the
person who executed it on behalf of such entities, and acknowledged to me that
such person 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]
My commission expires: December 3, 2000
<PAGE>
STATE OF NORTH CAROLINA )
) ss.:
COUNTY OF MECKLENBERG )
On the ----- day of -------------, 1998, before me, a notary public in
and for said State, personally appeared ---------------- known to me to be a
- --------------- of NATIONSBANK, N.A., one of the entities that executed the
within instrument, and also known to me to be the person who executed it on
behalf of such entity, and acknowledged to me that such person 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]
My commission expires: ---------------
<PAGE>
STATE OF )
) ss.:
COUNTY OF )
On the ------ day of --------------------, 1998, before me, a notary
public in and for said State, personally appeared ------------------- known to
me to be a ------------------------ of MIDLAND DATA SYSTEMS, INC., the sole
general partner of MIDLAND LOAN SERVICES, L.P., one of the entities that
executed the within instrument, and also known to me to be the person who
executed it as an officer of the general partner on behalf of such entity, and
acknowledged to me that such entity 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 ----------------------, 1998, before me, a notary
public in and for said State, personally appeared -------------------- known to
me to be a --------------------------- of LENNAR PARTNERS, INC., one of the
entities that executed the within instrument, and also known to me to be the
person who executed it as an officer of the general partner on behalf of such
entity, and acknowledged to me that such entity 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 NORTH CAROLINA )
) ss.:
COUNTY OF MECKLENBURG )
On the 25th day of March, 1998, before me, a notary public in and for
said State, personally appeared Ronald M. Feldman, known to me to be a Vice
President of NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION, one of the entities
that executed the within instrument, and also known to me to be the person who
executed it on behalf of such entity, and acknowledged to me that such entity
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 --------------------, 1998, before me, a notary
public in and for said State, personally appeared ---------------- known to me
to be a ----------------- of -------------------------------------------------,
one of the entities that executed the within instrument, and also known to me to
be the person who executed it on behalf of such entity, and acknowledged to me
that such entity 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 -----------------------, 1998, before me, a notary
public in and for said State, personally appeared ---------------- known to me
to be a ------------------- of ------------------------------------, and
- ------------------- known to me to be a ----------------- of
- ----------------------------------, one of the entities that executed the within
instrument, and also known to me to be the persons who executed it on behalf of
such entity, and acknowledged to me that such entity 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>
Exhibit A-1
Form of Class A-1 Certificate
CLASS A-1 COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 1998-1
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by
NATIONSLINK FUNDING CORPORATION
Pass-Through Rate: Certificate No. A-1-__
______% per annum
Date of Amended and Restated Certificate Principal Balance of this
Pooling and Servicing Certificate as of the Issue Date:
Agreement: March 1, 1998 $______________
Cut-off Date: March 1, 1998 Class Principal Balance of all the Class A-1
Certificates as of the Issue Date:
$199,017,108
Issue Date: March 25, 1998
First Distribution Date: Approximate Aggregate unpaid principal balance
April 20, 1998 of the Mortgage Pool as of the Cut-off Date,
after deducting payments of principal due on or
Master Servicer: before such date (the "Initial Pool Balance"):
Midland Loan Services, L.P. $1,020,600,558
Special Servicer: Trustee and REMIC Administrator:
Lennar Partners, Inc. Norwest Bank Minnesota, National Association
Mortgage Loan Seller:
NationsBank, N.A. CUSIP No. 63859C AN 3
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF 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.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN NATIONSLINK
FUNDING CORPORATION, NATIONSBANK, N.A., NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, MIDLAND LOAN SERVICES, L.P., LENNAR PARTNERS, INC. OR ANY OF THEIR
RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER
PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (I) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR A 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 (EACH A "PLAN") OR (II) A PERSON ACTING ON
BEHALF OF OR USING THE ASSETS OF ANY SUCH PLAN (INCLUDING AN ENTITY WHOSE
UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF INVESTMENT IN THE ENTITY BY
SUCH PLAN AND THE APPLICATION OF DEPARTMENT OF LABOR REGULATION ss. 2510.3-101),
OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER
CIRCUMSTANCES WHEREBY THE PURCHASE AND HOLDING OF SUBORDINATE CERTIFICATES BY
SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE PROHIBITED TRANSACTION
PROVISIONS OF ERISA AND THE CODE UNDER PROHIBITED TRANSACTION CLASS EXEMPTION
95-60 OR (B) IF SUCH CERTIFICATE IS PRESENTED FOR REGISTRATION IN THE NAME OF A
PERSON DESCRIBED IN CLAUSES (I) OR (II) ABOVE, AN OPINION OF COUNSEL IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR TO THE
EFFECT THAT SUCH ACQUISITION AND HOLDING OF SUCH CERTIFICATE BY SUCH PROPOSED
PURCHASER OR TRANSFEREE WILL NOT RESULT IN THE ASSETS OF THE TRUST FUND BEING
DEEMED TO BE "PLAN ASSETS" AND SUBJECT TO THE FIDUCIARY RESPONSIBILITY
PROVISIONS OF ERISA, THE PROHIBITED TRANSACTION PROVISIONS OF THE CODE OR THE
PROVISIONS OF ANY SIMILAR LAW, WILL NOT CONSTITUTE OR RESULT IN A "PROHIBITED
TRANSACTION" WITHIN THE MEANING OF ERISA, SECTION 4975 OF THE CODE OR ANY
SIMILAR LAW, AND WILL NOT SUBJECT THE TRUSTEE, THE CERTIFICATE REGISTRAR, THE
MASTER SERVICER, THE SPECIAL SERVICER, THE PLACEMENT AGENT OR THE DEPOSITOR TO
ANY OBLIGATION OR LIABILITY (INCLUDING OBLIGATIONS OR LIABILITIES UNDER ERISA,
SECTION 4975 OF THE CODE OR ANY SUCH SIMILAR LAW) IN ADDITION TO THOSE SET FORTH
IN THE AGREEMENT. THE TRANSFEREE OF A BENEFICIAL INTEREST IN A CERTIFICATE THAT
IS A BOOK-ENTRY CERTIFICATE SHALL BE DEEMED TO REPRESENT THAT IT IS NOT A PERSON
DESCRIBED IN CLAUSES (I) OR (II) ABOVE.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR INTEREST"
IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the principal
balance of this Certificate (its "Certificate Principal Balance") as of the
Issue Date by the aggregate principal balance of all the Certificates of the
same Class as this Certificate (their "Class Principal Balance") as of the Issue
Date) in that certain beneficial ownership interest in the Trust Fund evidenced
by all the Certificates of the same Class as this Certificate. The Trust Fund
was created and the Certificates were issued pursuant to an Amended and Restated
Pooling and Servicing Agreement, dated as specified above (the "Agreement"),
among NationsLink Funding Corporation, as Depositor, and the Mortgage Loan
Seller, Master Servicer, Special Servicer, Trustee and REMIC Administrator
identified above. To the extent not defined herein, the capitalized terms used
herein have the respective meanings assigned in the Agreement. This Certificate
is issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
20th day of each month or, if such 20th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed pursuant to the Agreement
on the applicable Distribution Date in respect of the Class of Certificates to
which this Certificate belongs. All distributions made under the Agreement in
respect of this Certificate will be made by the Trustee by wire transfer in
immediately available funds to the account of the Person entitled thereto at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate) will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the offices of the Certificate Registrar appointed as provided in the
Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without coupons
in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer or
exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
For so long as this Certificate is registered in the name of Cede & Co., or
in such other name as is requested by an authorized representative of DTC,
transfers of interests in this Certificate shall be made through the book-entry
facilities of DTC.
Prior to due presentment of this Certificate for registration of transfer,
the Depositor, the Mortgage Loan Seller, 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 this Certificate is
registered as the owner hereof for all purposes, and none of the Depositor, the
Mortgage Loan Seller, the Master Servicer, the Special Servicer, the Trustee,
the REMIC Administrator, the Certificate Registrar or any such agent shall be
affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall terminate
upon distribution (or provision for distribution) to the Certificateholders of
all amounts held by or on behalf of the Trustee and required to be distributed
to them pursuant to the Agreement following the earlier of (i) 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, and (ii) the purchase by the
Master Servicer or by any Majority Certificateholder of the Controlling Class
(other than the Depositor or the Mortgage Loan Seller) at a price determined as
provided in the Agreement of all Mortgage Loans and any REO Properties remaining
in the Trust Fund. The Agreement permits, but does not require, any such
Majority Certificateholder or the Master Servicer to purchase from the Trust
Fund all Mortgage Loans and any REO Properties remaining therein. The exercise
of such right will effect early retirement of the Certificates; however, such
right to purchase is subject to the aggregate Stated Principal Balance of the
Mortgage Pool at the time of purchase being less than 1% of the Initial Pool
Balance specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Mortgage Loan Seller, the Master Servicer, the Special Servicer,
the Trustee and the REMIC Administrator thereunder and the rights of the
Certificateholders thereunder, at any time by the Depositor, the Mortgage Loan
Seller, the Master Servicer, the Special Servicer, the Trustee and the REMIC
Administrator with the consent of the Holders of Certificates entitled to at
least 51% of the Voting Rights allocated to the affected Classes. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain circumstances,
including any amendment necessary to maintain the status of REMIC I or REMIC II
as a REMIC, without the consent of the Holders of any of the Certificates.
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 Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws of
the State of New York that are applicable to agreements negotiated, made and to
be performed in said State, and the obligations, rights and remedies of the
Holder hereof shall be determined in accordance with such laws.
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Norwest Bank Minnesota, National Association,
as Trustee
By:_________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-1 Certificates referred to in the
within-mentioned Agreement.
Dated:
Norwest Bank Minnesota, National Association,
as Certificate Registrar
By:_________________________________
Authorized Officer
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto ________________________________ (please print or typewrite name and
address including postal zip code of assignee) the beneficial ownership interest
in the Trust Fund evidenced by the within Commercial Mortgage Pass-Through
Certificate and hereby authorize(s) the registration of transfer of such
interest to the above named assignee on the Certificate Register of the Trust
Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named assignee
and delivery of such Commercial Mortgage Pass-Through Certificate to the
following address: ____________________________________________________________.
Dated:
_____________________________________
Signature by or on behalf of Assignor
_____________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise,
in immediately available funds, to ______________________________________ for
the account of ___________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and notices
should be mailed to _______________________________________________.
This information is provided by _____________________________________, the
assignee named above, or ________________________________________, as its agent.
<PAGE>
Exhibit A-2
Form of Class A-2 Certificate
CLASS A-2 COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 1998-1
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by
NATIONSLINK FUNDING CORPORATION
Pass-Through Rate: Certificate No. A-2-__
______% per annum
Date of Amended and Restated Certificate Principal Balance of this
Pooling and Servicing Certificate as of the Issue Date:
Agreement: March 1, 1998 $______________
Cut-off Date: March 1, 1998 Class Principal Balance of all the Class A-2
Certificates as of the Issue Date:
$81,648,044
Issue Date: March 25, 1998
First Distribution Date: Approximate Aggregate unpaid principal balance of
April 20, 1998 the Mortgage Pool as of the Cut-off Date, after
deducting payments of principal due on or before
Master Servicer: such date (the "Initial Pool Balance"):
Midland Loan Services, L.P . $1,020,600,558
Trustee and REMIC Administrator:
Special Servicer: Norwest Bank Minnesota, National Association
Lennar Partners, Inc.
Mortgage Loan Seller:
NationsBank, N.A. CUSIP No. 63859C AP 8
<PAGE>
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF 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.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN NATIONSLINK
FUNDING CORPORATION, NATIONSBANK, N.A., NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, MIDLAND LOAN SERVICES, L.P., LENNAR PARTNERS, INC. OR ANY OF THEIR
RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER
PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (I) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR A 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 (EACH A "PLAN") OR (II) A PERSON ACTING ON
BEHALF OF OR USING THE ASSETS OF ANY SUCH PLAN (INCLUDING AN ENTITY WHOSE
UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF INVESTMENT IN THE ENTITY BY
SUCH PLAN AND THE APPLICATION OF DEPARTMENT OF LABOR REGULATION ss. 2510.3-101),
OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER
CIRCUMSTANCES WHEREBY THE PURCHASE AND HOLDING OF SUBORDINATE CERTIFICATES BY
SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE PROHIBITED TRANSACTION
PROVISIONS OF ERISA AND THE CODE UNDER PROHIBITED TRANSACTION CLASS EXEMPTION
95-60 OR (B) IF SUCH CERTIFICATE IS PRESENTED FOR REGISTRATION IN THE NAME OF A
PERSON DESCRIBED IN CLAUSES (I) OR (II) ABOVE, AN OPINION OF COUNSEL IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR TO THE
EFFECT THAT SUCH ACQUISITION AND HOLDING OF SUCH CERTIFICATE BY SUCH PROPOSED
PURCHASER OR TRANSFEREE WILL NOT RESULT IN THE ASSETS OF THE TRUST FUND BEING
DEEMED TO BE "PLAN ASSETS" AND SUBJECT TO THE FIDUCIARY RESPONSIBILITY
PROVISIONS OF ERISA, THE PROHIBITED TRANSACTION PROVISIONS OF THE CODE OR THE
PROVISIONS OF ANY SIMILAR LAW, WILL NOT CONSTITUTE OR RESULT IN A "PROHIBITED
TRANSACTION" WITHIN THE MEANING OF ERISA, SECTION 4975 OF THE CODE OR ANY
SIMILAR LAW, AND WILL NOT SUBJECT THE TRUSTEE, THE CERTIFICATE REGISTRAR, THE
MASTER SERVICER, THE SPECIAL SERVICER, THE PLACEMENT AGENT OR THE DEPOSITOR TO
ANY OBLIGATION OR LIABILITY (INCLUDING OBLIGATIONS OR LIABILITIES UNDER ERISA,
SECTION 4975 OF THE CODE OR ANY SUCH SIMILAR LAW) IN ADDITION TO THOSE SET FORTH
IN THE AGREEMENT. THE TRANSFEREE OF A BENEFICIAL INTEREST IN A CERTIFICATE THAT
IS A BOOK-ENTRY CERTIFICATE SHALL BE DEEMED TO REPRESENT THAT IT IS NOT A PERSON
DESCRIBED IN CLAUSES (I) OR (II) ABOVE.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR INTEREST"
IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the principal
balance of this Certificate (its "Certificate Principal Balance") as of the
Issue Date by the aggregate principal balance of all the Certificates of the
same Class as this Certificate (their "Class Principal Balance") as of the Issue
Date) in that certain beneficial ownership interest in the Trust Fund evidenced
by all the Certificates of the same Class as this Certificate. The Trust Fund
was created and the Certificates were issued pursuant to an Amended and Restated
Pooling and Servicing Agreement, dated as specified above (the "Agreement"),
among NationsLink Funding Corporation, as Depositor, and the Mortgage Loan
Seller, Master Servicer, Special Servicer, Trustee and REMIC Administrator
identified above. To the extent not defined herein, the capitalized terms used
herein have the respective meanings assigned in the Agreement. This Certificate
is issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
20th day of each month or, if such 20th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed pursuant to the Agreement
on the applicable Distribution Date in respect of the Class of Certificates to
which this Certificate belongs. All distributions made under the Agreement in
respect of this Certificate will be made by the Trustee by wire transfer in
immediately available funds to the account of the Person entitled thereto at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate) will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the offices of the Certificate Registrar appointed as provided in the
Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without coupons
in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer or
exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
For so long as this Certificate is registered in the name of Cede & Co., or
in such other name as is requested by an authorized representative of DTC,
transfers of interests in this Certificate shall be made through the book-entry
facilities of DTC.
Prior to due presentment of this Certificate for registration of transfer,
the Depositor, the Mortgage Loan Seller, 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 this Certificate is
registered as the owner hereof for all purposes, and none of the Depositor, the
Mortgage Loan Seller, the Master Servicer, the Special Servicer, the Trustee,
the REMIC Administrator, the Certificate Registrar or any such agent shall be
affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall terminate
upon distribution (or provision for distribution) to the Certificateholders of
all amounts held by or on behalf of the Trustee and required to be distributed
to them pursuant to the Agreement following the earlier of (i) 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, and (ii) the purchase by the
Master Servicer or by any Majority Certificateholder of the Controlling Class
(other than the Depositor or the Mortgage Loan Seller) at a price determined as
provided in the Agreement of all Mortgage Loans and any REO Properties remaining
in the Trust Fund. The Agreement permits, but does not require, any such
Majority Certificateholder or the Master Servicer to purchase from the Trust
Fund all Mortgage Loans and any REO Properties remaining therein. The exercise
of such right will effect early retirement of the Certificates; however, such
right to purchase is subject to the aggregate Stated Principal Balance of the
Mortgage Pool at the time of purchase being less than 1% of the Initial Pool
Balance specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Mortgage Loan Seller, the Master Servicer, the Special Servicer,
the Trustee and the REMIC Administrator thereunder and the rights of the
Certificateholders thereunder, at any time by the Depositor, the Mortgage Loan
Seller, the Master Servicer, the Special Servicer, the Trustee and the REMIC
Administrator with the consent of the Holders of Certificates entitled to at
least 51% of the Voting Rights allocated to the affected Classes. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain circumstances,
including any amendment necessary to maintain the status of REMIC I or REMIC II
as a REMIC, without the consent of the Holders of any of the Certificates.
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 Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws of
the State of New York that are applicable to agreements negotiated, made and to
be performed in said State, and the obligations, rights and remedies of the
Holder hereof shall be determined in accordance with such laws.
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Norwest Bank Minnesota, National
Association,
as Trustee
By:_________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-2 Certificates referred to in the
within-mentioned Agreement.
Dated:
Norwest Bank Minnesota, National
Association,
as Certificate Registrar
By:_________________________________
Authorized Officer
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto ____________________________________ (please print or typewrite name and
address including postal zip code of assignee) the beneficial ownership interest
in the Trust Fund evidenced by the within Commercial Mortgage Pass-Through
Certificate and hereby authorize(s) the registration of transfer of such
interest to the above named assignee on the Certificate Register of the Trust
Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named assignee
and delivery of such Commercial Mortgage Pass-Through Certificate to the
following address: ____________________________________________________________.
Dated:
______________________________________
Signature by or on behalf of Assignor
______________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise,
in immediately available funds, to ____________________________________________
for the account of_________________________________________________________.
Distributions made by check (such check to be made payable
to_______________________________) and all applicable statements and notices
should be mailed to______________________________________________________.
This information is provided by___________________________________, the
assignee named above, or ______________________________________, as its agent.
<PAGE>
Exhibit A-3
Form of Class A-3 Certificate
CLASS A-3 COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 1998-1
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by
NATIONSLINK FUNDING CORPORATION
Pass-Through Rate: Certificate No. A-3-__
______% per annum
Date of Amended and Restated Certificate Principal Balance of this
Pooling and Servicing Certificate as of the Issue Date:
Agreement: March 1, 1998 $__________
Cut-off Date: March 1, 1998 Class Principal Balance of all the Class
Cut-off Date: March 1, 1998 A-3 Certificates as of the Issue Date:
$433,755,237
Issue Date: March 25, 1998
First Distribution Date: Approximate Aggregate unpaid principal balance
April 20, 1998 of the Mortgage Pool as of the Cut-off Date,
after deducting payments of principal due on or
Master Servicer: before such date (the "Initial Pool Balance"):
Midland Loan Services, L.P. $1,020,600,558
Trustee and REMIC Administrator:
Special Servicer: Norwest Bank Minnesota, National Association
Lennar Partners, Inc.
Mortgage Loan Seller:
NationsBank, N.A. CUSIP No. 63859C AQ 6
<PAGE>
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF 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.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN NATIONSLINK
FUNDING CORPORATION, NATIONSBANK, N.A., NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, MIDLAND LOAN SERVICES, L.P., LENNAR PARTNERS, INC. OR ANY OF THEIR
RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER
PERSON.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR INTEREST"
IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the principal
balance of this Certificate (its "Certificate Principal Balance") as of the
Issue Date by the aggregate principal balance of all the Certificates of the
same Class as this Certificate (their "Class Principal Balance") as of the Issue
Date) in that certain beneficial ownership interest in the Trust Fund evidenced
by all the Certificates of the same Class as this Certificate. The Trust Fund
was created and the Certificates were issued pursuant to an Amended and Restated
Pooling and Servicing Agreement, dated as specified above (the "Agreement"),
among NationsLink Funding Corporation, as Depositor, and the Mortgage Loan
Seller, Master Servicer, Special Servicer, Trustee and REMIC Administrator
identified above. To the extent not defined herein, the capitalized terms used
herein have the respective meanings assigned in the Agreement. This Certificate
is issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
20th day of each month or, if such 20th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed pursuant to the Agreement
on the applicable Distribution Date in respect of the Class of Certificates to
which this Certificate belongs. All distributions made under the Agreement in
respect of this Certificate will be made by the Trustee by wire transfer in
immediately available funds to the account of the Person entitled thereto at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate) will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the offices of the Certificate Registrar appointed as provided in the
Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without coupons
in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer or
exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
For so long as this Certificate is registered in the name of Cede & Co., or
in such other name as is requested by an authorized representative of DTC,
transfers of interests in this Certificate shall be made through the book-entry
facilities of DTC.
Prior to due presentment of this Certificate for registration of transfer,
the Depositor, the Mortgage Loan Seller, 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 this Certificate is
registered as the owner hereof for all purposes, and none of the Depositor, the
Mortgage Loan Seller, the Master Servicer, the Special Servicer, the Trustee,
the REMIC Administrator, the Certificate Registrar or any such agent shall be
affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall terminate
upon distribution (or provision for distribution) to the Certificateholders of
all amounts held by or on behalf of the Trustee and required to be distributed
to them pursuant to the Agreement following the earlier of (i) 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, and (ii) the purchase by the
Master Servicer or by any Majority Certificateholder of the Controlling Class
(other than the Depositor or the Mortgage Loan Seller) at a price determined as
provided in the Agreement of all Mortgage Loans and any REO Properties remaining
in the Trust Fund. The Agreement permits, but does not require, any such
Majority Certificateholder or the Master Servicer to purchase from the Trust
Fund all Mortgage Loans and any REO Properties remaining therein. The exercise
of such right will effect early retirement of the Certificates; however, such
right to purchase is subject to the aggregate Stated Principal Balance of the
Mortgage Pool at the time of purchase being less than 1% of the Initial Pool
Balance specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Mortgage Loan Seller, the Master Servicer, the Special Servicer,
the Trustee and the REMIC Administrator thereunder and the rights of the
Certificateholders thereunder, at any time by the Depositor, the Mortgage Loan
Seller, the Master Servicer, the Special Servicer, the Trustee and the REMIC
Administrator with the consent of the Holders of Certificates entitled to at
least 51% of the Voting Rights allocated to the affected Classes. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain circumstances,
including any amendment necessary to maintain the status of REMIC I or REMIC II
as a REMIC, without the consent of the Holders of any of the Certificates.
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 Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws of
the State of New York that are applicable to agreements negotiated, made and to
be performed in said State, and the obligations, rights and remedies of the
Holder hereof shall be determined in accordance with such laws.
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Norwest Bank Minnesota, National Association,
as Trustee
By:_______________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-3 Certificates referred to in the
within-mentioned Agreement.
Dated:
Norwest Bank Minnesota, National Association,
as Certificate Registrar
By:________________________________
Authorized Officer
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto ______________________________(please print or typewrite name and address
including postal zip code of assignee) the beneficial ownership interest in the
Trust Fund evidenced by the within Commercial Mortgage Pass-Through Certificate
and hereby authorize(s) the registration of transfer of such interest to the
above named assignee on the Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named assignee
and delivery of such Commercial Mortgage Pass-Through Certificate to the
following address:_____________________________________________________________.
Dated:
_____________________________________
Signature by or on behalf of Assignor
_____________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise,
in immediately available funds, to _________________________for the account of
_______________________________________________________________.
Distributions made by check (such check to be made payable to
_______________________________________) and all applicable statements and
notices should be mailed to
____________________________________________________________.
This information is provided by_____________________________, the assignee
named above, or ____________________________________________________, as its
agent.
<PAGE>
Exhibit A-4
Form of Class X-1 Certificate
CLASS X-1 COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 1998-1
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by
NATIONSLINK FUNDING CORPORATION
Pass-Through Rate: Variable Certificate No. X-1
Date of Amended and Restated Certificate Notional Amount of this Certificate
Pooling and Servicing as of the Issue Date: $____________
Agreement: March 1, 1998
Cut-off Date: March 1, 1998 Class Notional Amount all the Class X-1
Certificates as of the Issue Date: $714,348,947
Issue Date: March 25, 1998
First Distribution Date: Approximate Aggregate unpaid principal balance of
April 20, 1998 the Mortgage Pool as of the Cut-off Date, after
deducting payments of principal due on or before
Master Servicer: such date (the "Initial Pool Balance"):
Midland Loan Services, L.P. $1,020,600,558
Special Servicer: Trustee and REMIC Administrator:
Lennar Partners, Inc. Norwest Bank Minnesota, National Association
Mortgage Loan Seller: CUSIP No. 63859C AR 4
NationsBank, N.A.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF 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.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN NATIONSLINK
FUNDING CORPORATION, NATIONSBANK, N.A., NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, MIDLAND LOAN SERVICES, L.P., LENNAR PARTNERS, INC. OR ANY OF THEIR
RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER
PERSON.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR INTEREST"
IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE. THE FOLLOWING
INFORMATION IS PROVIDED SOLELY FOR THE PURPOSES OF APPLYING THE U.S. FEDERAL
INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES TO THIS CERTIFICATE. THIS
CERTIFICATE IS ISSUED ON MARCH 25, 1998, AT AN ISSUE PRICE OF 7.03973% OF THE
INITIAL CLASS X-1 NOTIONAL AMOUNT, 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 ZERO 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 WILL CHANGE BASED ON SCHEDULED PAYMENTS OF PRINCIPAL ON
THE MORTGAGE LOANS: (I) THE AMOUNT OF OID AS A PERCENTAGE OF THE INITIAL CLASS
X-1 NOTIONAL AMOUNT IS APPROXIMATELY 2.86901610%; (II) THE ANNUAL YIELD TO
MATURITY OF THIS CERTIFICATE, COMPOUNDED MONTHLY, IS APPROXIMATELY 8.50%; AND
(III) THE AMOUNT OF OID ALLOCABLE TO THE SHORT FIRST ACCRUAL PERIOD (MARCH 25,
1998 TO APRIL 20, 1998) AS A PERCENTAGE OF THE INITIAL CLASS X-1 NOTIONAL
AMOUNT, CALCULATED USING THE EXACT METHOD, IS APPROXIMATELY 0.04151783%.
THIS CERTIFICATE DOES NOT HAVE A CERTIFICATE PRINCIPAL BALANCE AND DOES NOT
ENTITLE THE HOLDER HEREOF TO ANY DISTRIBUTIONS OF PRINCIPAL. THE HOLDER HEREOF
WILL BE ENTITLED TO DISTRIBUTIONS OF INTEREST ACCRUED AS PROVIDED IN THE
AGREEMENT REFERRED TO HEREIN ON THE CERTIFICATE NOTIONAL AMOUNT OF THIS
CERTIFICATE, WHICH AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the notional
principal amount of this Certificate (its "Certificate Notional Amount") as of
the Issue Date by the aggregate notional principal balance of all the
Certificates of the same Class as this Certificate (their "Class Notional
Amount") as of the Issue Date) in that certain beneficial ownership interest in
the Trust Fund evidenced by all the Certificates of the same Class as this
Certificate. The Trust Fund was created and the Certificates were issued
pursuant to an Amended and Restated Pooling and Servicing Agreement, dated as
specified above (the "Agreement"), among NationsLink Funding Corporation, as
Depositor, and the Mortgage Loan Seller, Master Servicer, Special Servicer,
Trustee and REMIC Administrator identified above. To the extent not defined
herein, the capitalized terms used herein have the respective meanings assigned
in the Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
20th day of each month or, if such 20th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed pursuant to the Agreement
on the applicable Distribution Date in respect of the Class of Certificates to
which this Certificate belongs. All distributions made under the Agreement in
respect of this Certificate will be made by the Trustee by wire transfer in
immediately available funds to the account of the Person entitled thereto at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate will be made after due notice by the Trustee of the pendency of such
distribution and only upon presentation and surrender of this Certificate at the
offices of the Certificate Registrar appointed as provided in the Agreement or
such other location as may be specified in such notice.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without coupons
in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer or
exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
For so long as this Certificate is registered in the name of Cede & Co., or
in such other name as is requested by an authorized representative of DTC,
transfers of interests in this Certificate shall be made through the book-entry
facilities of DTC.
Prior to due presentment of this Certificate for registration of transfer,
the Depositor, the Mortgage Loan Seller, 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 this Certificate is
registered as the owner hereof for all purposes, and none of the Depositor, the
Mortgage Loan Seller, the Master Servicer, the Special Servicer, the Trustee,
the REMIC Administrator, the Certificate Registrar or any such agent shall be
affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of (i) 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, and (ii) the purchase by the Master Servicer or by any Majority
Certificateholder of the Controlling Class (other than the Depositor or the
Mortgage Loan Seller) at a price determined as provided in the Agreement of all
Mortgage Loans and any REO Properties remaining in the Trust Fund. The Agreement
permits, but does not require, any such Majority Certificateholder or the Master
Servicer to purchase from the Trust Fund all Mortgage Loans and any REO
Properties remaining therein. The exercise of such right will effect early
retirement of the Certificates; however, such right to purchase is subject to
the aggregate Stated Principal Balance of the Mortgage Pool at the time of
purchase being less than 1% of the Initial Pool Balance specified on the face
hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Mortgage Loan Seller, the Master Servicer, the Special Servicer,
the Trustee, and the REMIC Administrator thereunder and the rights of the
Certificateholders thereunder, at any time by the Depositor, the Mortgage Loan
Seller, the Master Servicer, the Special Servicer, the Trustee and the REMIC
Administrator with the consent of the Holders of Certificates entitled to at
least 51% of the Voting Rights allocated to the affected Classes. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain circumstances,
including any amendment necessary to maintain the status of REMIC I or REMIC II
as a REMIC, without the consent of the Holders of any of the Certificates.
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 Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws of
the State of New York that are applicable to agreements negotiated, made and to
be performed in said State, and the obligations, rights and remedies of the
Holder hereof shall be determined in accordance with such laws.
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Norwest Bank Minnesota, National Association,
as Trustee
By:________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class X-1 Certificates referred to in the
within-mentioned Agreement.
Dated:
Norwest Bank Minnesota, National Association,
as Certificate Registrar
By:________________________________
Authorized Officer
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto _____________________________ (please print or typewrite name and address
including postal zip code of assignee) the beneficial ownership interest in the
Trust Fund evidenced by the within Commercial Mortgage Pass-Through Certificate
and hereby authorize(s) the registration of transfer of such interest to the
above named assignee on the Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named assignee
and delivery of such Commercial Mortgage Pass-Through Certificate to the
following address: ____________________________________________________________.
Dated:
_____________________________________
Signature by or on behalf of Assignor
_____________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise,
in immediately available funds, to ___________________________________ or the
account of _______________________________________.
Distributions made by check (such check to be made payable
to_______________________________) and all applicable statements and notices
should be mailed to _________________________________________________________.
This information is provided by _________________________, the assignee
named above, or______________________________________, as its agent.
<PAGE>
Exhibit A-5
Form of Class X-2 Certificate
CLASS X-2 COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 1998-1
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by
NATIONSLINK FUNDING CORPORATION
Pass-Through Rate: Variable Certificate No. X-2
Date of Amended and Restated Certificate Notional Amount of this Certificate
Pooling and Servicing as of the Issue Date: $____________
Agreement: March 1, 1998
Cut-off Date: March 1, 1998 Class Notional Amount all the Class X-2
Certificates as of the Issue Date: $306,149,551
Issue Date: March 25, 1998
First Distribution Date: Approximate Aggregate unpaid principal balance of
April 20, 1998 the Mortgage Pool as of the Cut-off Date, after
deducting payments of principal due on or before
Master Servicer: such date (the "Initial Pool Balance"):
Midland Loan Services, L.P. $1,020,600,558
Special Servicer: Trustee and REMIC Administrator:
Lennar Partners, Inc. Norwest Bank Minnesota, National Association
Mortgage Loan Seller: CUSIP No. 63859C AS 2
NationsBank, N.A.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF 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.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN NATIONSLINK
FUNDING CORPORATION, NATIONSBANK, N.A., NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, MIDLAND LOAN SERVICES, L.P., LENNAR PARTNERS, INC. OR ANY OF THEIR
RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER
PERSON.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR INTEREST"
IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE. THE FOLLOWING
INFORMATION IS PROVIDED SOLELY FOR THE PURPOSES OF APPLYING THE U.S. FEDERAL
INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES TO THIS CERTIFICATE. THIS
CERTIFICATE IS ISSUED ON MARCH 25, 1998, AT AN ISSUE PRICE OF 8.58179% OF THE
INITIAL CLASS X-2 NOTIONAL AMOUNT, 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 ZERO 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 WILL CHANGE BASED ON SCHEDULED PAYMENTS OF PRINCIPAL ON
THE MORTGAGE LOANS: (I) THE AMOUNT OF OID AS A PERCENTAGE OF THE INITIAL CLASS
X-2 NOTIONAL AMOUNT IS APPROXIMATELY 3.93060592%; (II) THE ANNUAL YIELD TO
MATURITY OF THIS CERTIFICATE, COMPOUNDED MONTHLY, IS APPROXIMATELY 8.30%; AND
(III) THE AMOUNT OF OID ALLOCABLE TO THE SHORT FIRST ACCRUAL PERIOD (MARCH 25,
1998 TO APRIL 20, 1998) AS A PERCENTAGE OF THE INITIAL CLASS X-2 NOTIONAL
AMOUNT, CALCULATED USING THE EXACT METHOD, IS APPROXIMATELY 0.04931619%.
THIS CERTIFICATE DOES NOT HAVE A CERTIFICATE PRINCIPAL BALANCE AND DOES NOT
ENTITLE THE HOLDER HEREOF TO ANY DISTRIBUTIONS OF PRINCIPAL. THE HOLDER HEREOF
WILL BE ENTITLED TO DISTRIBUTIONS OF INTEREST ACCRUED AS PROVIDED IN THE
AGREEMENT REFERRED TO HEREIN ON THE CERTIFICATE NOTIONAL AMOUNT OF THIS
CERTIFICATE, WHICH AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the notional
principal amount of this Certificate (its "Certificate Notional Amount") as of
the Issue Date by the aggregate notional principal balance of all the
Certificates of the same Class as this Certificate (their "Class Notional
Amount") as of the Issue Date) in that certain beneficial ownership interest in
the Trust Fund evidenced by all the Certificates of the same Class as this
Certificate. The Trust Fund was created and the Certificates were issued
pursuant to an Amended and Restated Pooling and Servicing Agreement, dated as
specified above (the "Agreement"), among NationsLink Funding Corporation, as
Depositor, and the Mortgage Loan Seller, Master Servicer, Special Servicer,
Trustee and REMIC Administrator identified above. To the extent not defined
herein, the capitalized terms used herein have the respective meanings assigned
in the Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
20th day of each month or, if such 20th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed pursuant to the Agreement
on the applicable Distribution Date in respect of the Class of Certificates to
which this Certificate belongs. All distributions made under the Agreement in
respect of this Certificate will be made by the Trustee by wire transfer in
immediately available funds to the account of the Person entitled thereto at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate will be made after due notice by the Trustee of the pendency of such
distribution and only upon presentation and surrender of this Certificate at the
offices of the Certificate Registrar appointed as provided in the Agreement or
such other location as may be specified in such notice.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without coupons
in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer or
exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
For so long as this Certificate is registered in the name of Cede & Co., or
in such other name as is requested by an authorized representative of DTC,
transfers of interests in this Certificate shall be made through the book-entry
facilities of DTC.
Prior to due presentment of this Certificate for registration of transfer,
the Depositor, the Mortgage Loan Seller, 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 this Certificate is
registered as the owner hereof for all purposes, and none of the Depositor, the
Mortgage Loan Seller, the Master Servicer, the Special Servicer, the Trustee,
the REMIC Administrator, the Certificate Registrar or any such agent shall be
affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall terminate
upon distribution (or provision for distribution) to the Certificateholders of
all amounts held by or on behalf of the Trustee and required to be distributed
to them pursuant to the Agreement following the earlier of (i) 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, and (ii) the purchase by the
Master Servicer or by any Majority Certificateholder of the Controlling Class
(other than the Depositor or the Mortgage Loan Seller) at a price determined as
provided in the Agreement of all Mortgage Loans and any REO Properties remaining
in the Trust Fund. The Agreement permits, but does not require, any such
Majority Certificateholder or the Master Servicer to purchase from the Trust
Fund all Mortgage Loans and any REO Properties remaining therein. The exercise
of such right will effect early retirement of the Certificates; however, such
right to purchase is subject to the aggregate Stated Principal Balance of the
Mortgage Pool at the time of purchase being less than 1% of the Initial Pool
Balance specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Mortgage Loan Seller, the Master Servicer, the Special Servicer,
the Trustee, and the REMIC Administrator thereunder and the rights of the
Certificateholders thereunder, at any time by the Depositor, the Mortgage Loan
Seller, the Master Servicer, the Special Servicer, the Trustee and the REMIC
Administrator with the consent of the Holders of Certificates entitled to at
least 51% of the Voting Rights allocated to the affected Classes. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain circumstances,
including any amendment necessary to maintain the status of REMIC I or REMIC II
as a REMIC, without the consent of the Holders of any of the Certificates.
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 Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws of
the State of New York that are applicable to agreements negotiated, made and to
be performed in said State, and the obligations, rights and remedies of the
Holder hereof shall be determined in accordance with such laws.
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Norwest Bank Minnesota, National Association,
as Trustee
By:________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class X-2 Certificates referred to in the
within-mentioned Agreement.
Dated:
Norwest Bank Minnesota, National Association,
as Certificate Registrar
By:________________________________
Authorized Officer
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto _________________________________ (please print or typewrite name and
address including postal zip code of assignee) the beneficial ownership interest
in the Trust Fund evidenced by the within Commercial Mortgage Pass-Through
Certificate and hereby authorize(s) the registration of transfer of such
interest to the above named assignee on the Certificate Register of the Trust
Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named assignee
and delivery of such Commercial Mortgage Pass-Through Certificate to the
following address: ____________________________________________________________.
Dated:
_____________________________________
Signature by or on behalf of Assignor
_____________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise,
in immediately available funds, to ___________________________________ or the
account of _______________________________________.
Distributions made by check (such check to be made payable
to_______________________________) and all applicable statements and notices
should be mailed to _________________________________________________________.
This information is provided by _________________________, the assignee
named above, or______________________________________, as its agent.
<PAGE>
Exhibit A-6
Form of Class B Certificate
CLASS B COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 1998-1
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by
NATIONSLINK FUNDING CORPORATION
Pass-Through Rate: Certificate No. B - __
_____% per annum
Date of Amended and Restated Certificate Principal Balance of this
Pooling and Servicing Certificate as of the Issue Date:
Agreement: March 1, 1998 $______________
Cut-off Date: March 1, 1998 Class Principal Balance of all the Class B
Certificates as of the Issue Date:
$53,581,529
Issue Date: March 25, 1998
First Distribution Date: Approximate Aggregate unpaid principal balance
April 20, 1998 of the Mortgage Pool as of the Cut-off Date,
after deducting payments of principal due on or
Master Servicer: before such date (the "Initial Pool Balance"):
Midland Loan Services, L.P. $1,020,600,558
Special Servicer: Trustee and REMIC Administrator:
Lennar Partners, Inc. Norwest Bank Minnesota, National Association
Mortgage Loan Seller:
NationsBank, N.A. CUSIP No. 63859C AT 0
<PAGE>
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF 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.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN NATIONSLINK
FUNDING CORPORATION, NATIONSBANK, N.A., NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, MIDLAND LOAN SERVICES, L.P., LENNAR PARTNERS, INC. OR ANY OF THEIR
RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER
PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (I) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR A 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 (EACH A "PLAN") OR (II) A PERSON ACTING ON
BEHALF OF OR USING THE ASSETS OF ANY SUCH PLAN (INCLUDING AN ENTITY WHOSE
UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF INVESTMENT IN THE ENTITY BY
SUCH PLAN AND THE APPLICATION OF DEPARTMENT OF LABOR REGULATION ss. 2510.3-101),
OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER
CIRCUMSTANCES WHEREBY THE PURCHASE AND HOLDING OF SUBORDINATE CERTIFICATES BY
SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE PROHIBITED TRANSACTION
PROVISIONS OF ERISA AND THE CODE UNDER PROHIBITED TRANSACTION CLASS EXEMPTION
95-60 OR (B) IF SUCH CERTIFICATE IS PRESENTED FOR REGISTRATION IN THE NAME OF A
PERSON DESCRIBED IN CLAUSES (I) OR (II) ABOVE, AN OPINION OF COUNSEL IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR TO THE
EFFECT THAT SUCH ACQUISITION AND HOLDING OF SUCH CERTIFICATE BY SUCH PROPOSED
PURCHASER OR TRANSFEREE WILL NOT RESULT IN THE ASSETS OF THE TRUST FUND BEING
DEEMED TO BE "PLAN ASSETS" AND SUBJECT TO THE FIDUCIARY RESPONSIBILITY
PROVISIONS OF ERISA, THE PROHIBITED TRANSACTION PROVISIONS OF THE CODE OR THE
PROVISIONS OF ANY SIMILAR LAW, WILL NOT CONSTITUTE OR RESULT IN A "PROHIBITED
TRANSACTION" WITHIN THE MEANING OF ERISA, SECTION 4975 OF THE CODE OR ANY
SIMILAR LAW, AND WILL NOT SUBJECT THE TRUSTEE, THE CERTIFICATE REGISTRAR, THE
MASTER SERVICER, THE SPECIAL SERVICER, THE PLACEMENT AGENT OR THE DEPOSITOR TO
ANY OBLIGATION OR LIABILITY (INCLUDING OBLIGATIONS OR LIABILITIES UNDER ERISA,
SECTION 4975 OF THE CODE OR ANY SUCH SIMILAR LAW) IN ADDITION TO THOSE SET FORTH
IN THE AGREEMENT. THE TRANSFEREE OF A BENEFICIAL INTEREST IN A CERTIFICATE THAT
IS A BOOK-ENTRY CERTIFICATE SHALL BE DEEMED TO REPRESENT THAT IT IS NOT A PERSON
DESCRIBED IN CLAUSES (I) OR (II) ABOVE AGREEMENT REFERRED TO HEREIN.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR INTEREST"
IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF OF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the principal
balance of this Certificate (its "Certificate Principal Balance") as of the
Issue Date by the aggregate principal balance of all the Certificates of the
same Class as this Certificate (their "Class Principal Balance") as of the Issue
Date) in that certain beneficial ownership interest in the Trust Fund evidenced
by all the Certificates of the same Class as this Certificate. The Trust Fund
was created and the Certificates were issued pursuant to an Amended and Restated
Pooling and Servicing Agreement, dated as specified above (the "Agreement"),
among NationsLink Funding Corporation, as Depositor, and the Mortgage Loan
Seller, Master Servicer, Special Servicer, Trustee and REMIC Administrator
identified above. To the extent not defined herein, the capitalized terms used
herein have the respective meanings assigned in the Agreement. This Certificate
is issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
20th day of each month or, if such 20th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed pursuant to the Agreement
on the applicable Distribution Date in respect of the Class of Certificates to
which this Certificate belongs. All distributions made under the Agreement in
respect of this Certificate will be made by the Trustee by wire transfer in
immediately available funds to the account of the Person entitled thereto at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate) will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the offices of the Certificate Registrar appointed as provided in the
Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without coupons
in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer or
exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
For so long as this Certificate is registered in the name of Cede & Co., or
in such other name as is requested by an authorized representative of DTC,
transfers of interests in this Certificate shall be made through the book-entry
facilities of DTC.
Prior to due presentment of this Certificate for registration of transfer,
the Depositor, the Mortgage Loan Seller, 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 this Certificate is
registered as the owner hereof for all purposes, and none of the Depositor, the
Mortgage Loan Seller, the Master Servicer, the Special Servicer, the Trustee,
the REMIC Administrator, the Certificate Registrar or any such agent shall be
affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall terminate
upon distribution (or provision for distribution) to the Certificateholders of
all amounts held by or on behalf of the Trustee and required to be distributed
to them pursuant to the Agreement following the earlier of (i) 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, and (ii) the purchase by the
Master Servicer or by any Majority Certificateholder of the Controlling Class
(other than the Depositor or the Mortgage Loan Seller) at a price determined as
provided in the Agreement of all Mortgage Loans and any REO Properties remaining
in the Trust Fund. The Agreement permits, but does not require, any such
Majority Certificateholder or the Master Servicer to purchase from the Trust
Fund all Mortgage Loans and any REO Properties remaining therein. The exercise
of such right will effect early retirement of the Certificates; however, such
right to purchase is subject to the aggregate Stated Principal Balance of the
Mortgage Pool at the time of purchase being less than 1% of the Initial Pool
Balance specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Mortgage Loan Seller, the Master Servicer, the Special Servicer,
the Trustee and the REMIC Administrator thereunder and the rights of the
Certificateholders thereunder, at any time by the Depositor, the Mortgage Loan
Seller, the Master Servicer, the Special Servicer, the Trustee and the REMIC
Administrator with the consent of the Holders of Certificates entitled to at
least 51% of the Voting Rights allocated to the affected Classes. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain circumstances,
including any amendment necessary to maintain the status of REMIC I or REMIC II
as a REMIC, without the consent of the Holders of any of the Certificates.
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 Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws of
the State of New York that are applicable to agreements negotiated, made and to
be performed in said State, and the obligations, rights and remedies of the
Holder hereof shall be determined in accordance with such laws.
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Norwest Bank Minnesota, National Association,
as Trustee
By:__________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class B Certificates referred to in the within-mentioned
Agreement.
Dated:
Norwest Bank Minnesota, National Association,
as Certificate Registrar
By:__________________________________
Authorized Officer
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto _______________________________(please print or typewrite name and address
including postal zip code of assignee) the beneficial ownership interest in the
Trust Fund evidenced by the within Commercial Mortgage Pass-Through Certificate
and hereby authorize(s) the registration of transfer of such interest to the
above named assignee on the Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named assignee
and delivery of such Commercial Mortgage Pass-Through Certificate to the
following address: ___________________________________________________________.
Dated: ___________________ Signature by or on
behalf of Assignor
_________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise,
in immediately available funds, to ________________________for the account of
_________________________________________________________.
Distributions made by check (such check to be made payable to
__________________________) and all applicable statements and notices should be
mailed to ___________________________________.
This information is provided by_____________________________, the assignee
named above, or_____________________________________________________, as its
agent.
<PAGE>
Exhibit A-7
Form of Class C Certificate
CLASS C COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 1998-1
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by
NATIONSLINK FUNDING CORPORATION
Pass-Through Rate: Certificate No. C- __
_____% per annum
Date of Amended and Restated Certificate Principal Balance of this
Pooling and Servicing Certificate as of the Issue Date:
Agreement: March 1, 1998 $______________
Cut-off Date: March 1, 1998 Class Principal Balance of all the Class C
Certificates as of the Issue Date:
$56,133,030
Issue Date: March 25, 1998
First Distribution Date: Approximate Aggregate unpaid principal balance
April 20, 1998 of the Mortgage Pool as of the Cut-off Date,
after deducting payments of principal due on or
Master Servicer: before such date (the "Initial Pool Balance"):
Midland Loan Services, L.P. $1,020,600,558
Special Servicer: Trustee and REMIC Administrator:
Lennar Partners, Inc. Norwest Bank Minnesota, National Association
Mortgage Loan Seller:
NationsBank, N.A. CUSIP No. 63859C AU 7
<PAGE>
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF 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.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN NATIONSLINK
FUNDING CORPORATION, NATIONSBANK, N.A., NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, MIDLAND LOAN SERVICES, L.P., LENNAR PARTNERS, INC. OR ANY OF THEIR
RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER
PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (I) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR A 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 (EACH A "PLAN") OR (II) A PERSON ACTING ON
BEHALF OF OR USING THE ASSETS OF ANY SUCH PLAN (INCLUDING AN ENTITY WHOSE
UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF INVESTMENT IN THE ENTITY BY
SUCH PLAN AND THE APPLICATION OF DEPARTMENT OF LABOR REGULATION ss. 2510.3-101),
OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER
CIRCUMSTANCES WHEREBY THE PURCHASE AND HOLDING OF SUBORDINATE CERTIFICATES BY
SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE PROHIBITED TRANSACTION
PROVISIONS OF ERISA AND THE CODE UNDER PROHIBITED TRANSACTION CLASS EXEMPTION
95-60 OR (B) IF SUCH CERTIFICATE IS PRESENTED FOR REGISTRATION IN THE NAME OF A
PERSON DESCRIBED IN CLAUSES (I) OR (II) ABOVE, AN OPINION OF COUNSEL IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR TO THE
EFFECT THAT SUCH ACQUISITION AND HOLDING OF SUCH CERTIFICATE BY SUCH PROPOSED
PURCHASER OR TRANSFEREE WILL NOT RESULT IN THE ASSETS OF THE TRUST FUND BEING
DEEMED TO BE "PLAN ASSETS" AND SUBJECT TO THE FIDUCIARY RESPONSIBILITY
PROVISIONS OF ERISA, THE PROHIBITED TRANSACTION PROVISIONS OF THE CODE OR THE
PROVISIONS OF ANY SIMILAR LAW, WILL NOT CONSTITUTE OR RESULT IN A "PROHIBITED
TRANSACTION" WITHIN THE MEANING OF ERISA, SECTION 4975 OF THE CODE OR ANY
SIMILAR LAW, AND WILL NOT SUBJECT THE TRUSTEE, THE CERTIFICATE REGISTRAR, THE
MASTER SERVICER, THE SPECIAL SERVICER, THE PLACEMENT AGENT OR THE DEPOSITOR TO
ANY OBLIGATION OR LIABILITY (INCLUDING OBLIGATIONS OR LIABILITIES UNDER ERISA,
SECTION 4975 OF THE CODE OR ANY SUCH SIMILAR LAW) IN ADDITION TO THOSE SET FORTH
IN THE AGREEMENT. THE TRANSFEREE OF A BENEFICIAL INTEREST IN A CERTIFICATE THAT
IS A BOOK-ENTRY CERTIFICATE SHALL BE DEEMED TO REPRESENT THAT IT IS NOT A PERSON
DESCRIBED IN CLAUSES (I) OR (II) ABOVE.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR INTEREST"
IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF OF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the principal
balance of this Certificate (its "Certificate Principal Balance") as of the
Issue Date by the aggregate principal balance of all the Certificates of the
same Class as this Certificate (their "Class Principal Balance") as of the Issue
Date) in that certain beneficial ownership interest in the Trust Fund evidenced
by all the Certificates of the same Class as this Certificate. The Trust Fund
was created and the Certificates were issued pursuant to an Amended and Restated
Pooling and Servicing Agreement, dated as specified above (the "Agreement"),
among NationsLink Funding Corporation, as Depositor, and the Mortgage Loan
Seller, Master Servicer, Special Servicer, Trustee and REMIC Administrator
identified above. To the extent not defined herein, the capitalized terms used
herein have the respective meanings assigned in the Agreement. This Certificate
is issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
20th day of each month or, if such 20th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed pursuant to the Agreement
on the applicable Distribution Date in respect of the Class of Certificates to
which this Certificate belongs. All distributions made under the Agreement in
respect of this Certificate will be made by the Trustee by wire transfer in
immediately available funds to the account of the Person entitled thereto at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate) will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the offices of the Certificate Registrar appointed as provided in the
Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without coupons
in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer or
exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
For so long as this Certificate is registered in the name of Cede & Co., or
in such other name as is requested by an authorized representative of DTC,
transfers of interests in this Certificate shall be made through the book-entry
facilities of DTC.
Prior to due presentment of this Certificate for registration of transfer,
the Depositor, the Mortgage Loan Seller, 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 this Certificate is
registered as the owner hereof for all purposes, and none of the Depositor, the
Mortgage Loan Seller, the Master Servicer, the Special Servicer, the Trustee,
the REMIC Administrator, the Certificate Registrar or any such agent shall be
affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall terminate
upon distribution (or provision for distribution) to the Certificateholders of
all amounts held by or on behalf of the Trustee and required to be distributed
to them pursuant to the Agreement following the earlier of (i) 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, and (ii) the purchase by the
Master Servicer or by any Majority Certificateholder of the Controlling Class
(other than the Depositor or the Mortgage Loan Seller) at a price determined as
provided in the Agreement of all Mortgage Loans and any REO Properties remaining
in the Trust Fund. The Agreement permits, but does not require, any such
Majority Certificateholder or the Master Servicer to purchase from the Trust
Fund all Mortgage Loans and any REO Properties remaining therein. The exercise
of such right will effect early retirement of the Certificates; however, such
right to purchase is subject to the aggregate Stated Principal Balance of the
Mortgage Pool at the time of purchase being less than 1% of the Initial Pool
Balance specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Mortgage Loan Seller, the Master Servicer, the Special Servicer,
the Trustee and the REMIC Administrator thereunder and the rights of the
Certificateholders thereunder, at any time by the Depositor, the Mortgage Loan
Seller, the Master Servicer, the Special Servicer, the Trustee and the REMIC
Administrator with the consent of the Holders of Certificates entitled to at
least 51% of the Voting Rights allocated to the affected Classes. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain circumstances,
including any amendment necessary to maintain the status of REMIC I or REMIC II
as a REMIC, without the consent of the Holders of any of the Certificates.
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 Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws of
the State of New York that are applicable to agreements negotiated, made and to
be performed in said State, and the obligations, rights and remedies of the
Holder hereof shall be determined in accordance with such laws.
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Norwest Bank Minnesota, National Association,
as Trustee
By:_____________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class C Certificates referred to in the within-mentioned
Agreement.
Dated:
Norwest Bank Minnesota, National Association,
as Certificate Registrar
By:_____________________________________
Authorized Officer
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto ____________________________ (please print or typewrite name and address
including postal zip code of assignee) the beneficial ownership interest in the
Trust Fund evidenced by the within Commercial Mortgage Pass-Through Certificate
and hereby authorize(s) the registration of transfer of such interest to the
above named assignee on the Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named assignee
and delivery of such Commercial Mortgage Pass-Through Certificate to the
following address: ____________________________________________________________.
Dated:
_____________________________________
Signature by or on behalf of Assignor
_____________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise,
in immediately available funds, to _____________________ for the account of
_____________________________________________________.
Distributions made by check (such check to be made payable to
____________________________) and all applicable statements and notices should
be mailed to ________________________________________.
This information is provided by _____________________, the assignee named
above, or ____________________________________________, as its agent.
<PAGE>
Exhibit A-8
Form of Class D Certificate
CLASS D COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 1998-1
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by
NATIONSLINK FUNDING CORPORATION
Pass-Through Rate: Certificate No. D - __
_____% per annum
Date of Amended and Restated Certificate Principal Balance of this
Pooling and Servicing Certificate as of the Issue Date:
Agreement: March 1, 1998 $______________
Cut-off Date: March 1, 1998 Class Principal Balance of all the Class D
Certificates as of the Issue Date:
$48,478,526
Issue Date: March 25, 1998
First Distribution Date: Approximate Aggregate unpaid principal balance
April 20, 1998 of the Mortgage Pool as of the Cut-off Date,
after deducting payments of principal due on or
Master Servicer: before such date (the "Initial Pool Balance"):
Midland Loan Services, L.P. $1,020,600,558
Special Servicer: Trustee and REMIC Administrator:
Lennar Partners, Inc. Norwest Bank Minnesota, National Association
Mortgage Loan Seller:
NationsBank, N.A. CUSIP No. 63859C AV 5
<PAGE>
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF 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.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN NATIONSLINK
FUNDING CORPORATION, NATIONSBANK, N.A., NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, MIDLAND LOAN SERVICES, L.P., LENNAR PARTNERS, INC. OR ANY OF THEIR
RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER
PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (I) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR A 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 (EACH A "PLAN") OR (II) A PERSON ACTING ON
BEHALF OF OR USING THE ASSETS OF ANY SUCH PLAN (INCLUDING AN ENTITY WHOSE
UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF INVESTMENT IN THE ENTITY BY
SUCH PLAN AND THE APPLICATION OF DEPARTMENT OF LABOR REGULATION ss. 2510.3-101),
OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER
CIRCUMSTANCES WHEREBY THE PURCHASE AND HOLDING OF SUBORDINATE CERTIFICATES BY
SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE PROHIBITED TRANSACTION
PROVISIONS OF ERISA AND THE CODE UNDER PROHIBITED TRANSACTION CLASS EXEMPTION
95-60 OR (B) IF SUCH CERTIFICATE IS PRESENTED FOR REGISTRATION IN THE NAME OF A
PERSON DESCRIBED IN CLAUSES (I) OR (II) ABOVE, AN OPINION OF COUNSEL IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR TO THE
EFFECT THAT SUCH ACQUISITION AND HOLDING OF SUCH CERTIFICATE BY SUCH PROPOSED
PURCHASER OR TRANSFEREE WILL NOT RESULT IN THE ASSETS OF THE TRUST FUND BEING
DEEMED TO BE "PLAN ASSETS" AND SUBJECT TO THE FIDUCIARY RESPONSIBILITY
PROVISIONS OF ERISA, THE PROHIBITED TRANSACTION PROVISIONS OF THE CODE OR THE
PROVISIONS OF ANY SIMILAR LAW, WILL NOT CONSTITUTE OR RESULT IN A "PROHIBITED
TRANSACTION" WITHIN THE MEANING OF ERISA, SECTION 4975 OF THE CODE OR ANY
SIMILAR LAW, AND WILL NOT SUBJECT THE TRUSTEE, THE CERTIFICATE REGISTRAR, THE
MASTER SERVICER, THE SPECIAL SERVICER, THE PLACEMENT AGENT OR THE DEPOSITOR TO
ANY OBLIGATION OR LIABILITY (INCLUDING OBLIGATIONS OR LIABILITIES UNDER ERISA,
SECTION 4975 OF THE CODE OR ANY SUCH SIMILAR LAW) IN ADDITION TO THOSE SET FORTH
IN THE AGREEMENT. THE TRANSFEREE OF A BENEFICIAL INTEREST IN A CERTIFICATE THAT
IS A BOOK-ENTRY CERTIFICATE SHALL BE DEEMED TO REPRESENT THAT IT IS NOT A PERSON
DESCRIBED IN CLAUSES (I) OR (II) ABOVE.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR INTEREST"
IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF OF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the principal
balance of this Certificate (its "Certificate Principal Balance") as of the
Issue Date by the aggregate principal balance of all the Certificates of the
same Class as this Certificate (their "Class Principal Balance") as of the Issue
Date) in that certain beneficial ownership interest in the Trust Fund evidenced
by all the Certificates of the same Class as this Certificate. The Trust Fund
was created and the Certificates were issued pursuant to an Amended and Restated
Pooling and Servicing Agreement, dated as specified above (the "Agreement"),
among NationsLink Funding Corporation, as Depositor, and the Mortgage Loan
Seller, Master Servicer, Special Servicer, Trustee and REMIC Administrator
identified above. To the extent not defined herein, the capitalized terms used
herein have the respective meanings assigned in the Agreement. This Certificate
is issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
20th day of each month or, if such 20th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed pursuant to the Agreement
on the applicable Distribution Date in respect of the Class of Certificates to
which this Certificate belongs. All distributions made under the Agreement in
respect of this Certificate will be made by the Trustee by wire transfer in
immediately available funds to the account of the Person entitled thereto at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate) will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the offices of the Certificate Registrar appointed as provided in the
Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without coupons
in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer or
exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
For so long as this Certificate is registered in the name of Cede & Co., or
in such other name as is requested by an authorized representative of DTC,
transfers of interests in this Certificate shall be made through the book-entry
facilities of DTC.
Prior to due presentment of this Certificate for registration of transfer,
the Depositor, the Mortgage Loan Seller, 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 this Certificate is
registered as the owner hereof for all purposes, and none of the Depositor, the
Mortgage Loan Seller, the Master Servicer, the Special Servicer, the Trustee,
the REMIC Administrator, the Certificate Registrar or any such agent shall be
affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall terminate
upon distribution (or provision for distribution) to the Certificateholders of
all amounts held by or on behalf of the Trustee and required to be distributed
to them pursuant to the Agreement following the earlier of (i) 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, and (ii) the purchase by the
Master Servicer or by any Majority Certificateholder of the Controlling Class
(other than the Depositor or the Mortgage Loan Seller) at a price determined as
provided in the Agreement of all Mortgage Loans and any REO Properties remaining
in the Trust Fund. The Agreement permits, but does not require, any such
Majority Certificateholder or the Master Servicer to purchase from the Trust
Fund all Mortgage Loans and any REO Properties remaining therein. The exercise
of such right will effect early retirement of the Certificates; however, such
right to purchase is subject to the aggregate Stated Principal Balance of the
Mortgage Pool at the time of purchase being less than 1% of the Initial Pool
Balance specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Mortgage Loan Seller, the Master Servicer, the Special Servicer,
the Trustee and the REMIC Administrator thereunder and the rights of the
Certificateholders thereunder, at any time by the Depositor, the Mortgage Loan
Seller, the Master Servicer, the Special Servicer, the Trustee and the REMIC
Administrator with the consent of the Holders of Certificates entitled to at
least 51% of the Voting Rights allocated to the affected Classes. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain circumstances,
including any amendment necessary to maintain the status of REMIC I or REMIC II
as a REMIC, without the consent of the Holders of any of the Certificates.
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 Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws of
the State of New York that are applicable to agreements negotiated, made and to
be performed in said State, and the obligations, rights and remedies of the
Holder hereof shall be determined in accordance with such laws.
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Norwest Bank Minnesota, National Association,
as Trustee
By:________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class D Certificates referred to in the within-mentioned
Agreement.
Dated:
Norwest Bank Minnesota, National Association,
as Certificate Registrar
By:_________________________________
Authorized Officer
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto _________________________ (please print or typewrite name and address
including postal zip code of assignee) the beneficial ownership interest in the
Trust Fund evidenced by the within Commercial Mortgage Pass-Through Certificate
and hereby authorize(s) the registration of transfer of such interest to the
above named assignee on the Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named assignee
and delivery of such Commercial Mortgage Pass-Through Certificate to the
following address:_____________________________________________________________.
Dated:
_____________________________________
Signature by or on behalf of Assignor
_____________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise,
in immediately available funds, to ____________________________________________
for the account of ____________________________________________________________.
Distributions made by check (such check to be made payable to
______________________________________________________________) and all
applicable statements and notices should be mailed to
__________________________________________.
This information is provided by ___________________________________, the
assignee named above, or ____________________________________________, as its
agent.
<PAGE>
Exhibit A-9
Form of Class E Certificate
CLASS E COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 1998-1
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by
NATIONSLINK FUNDING CORPORATION
Pass-Through Rate: Certificate No. E - __
_____% per annum
Date of Amended and Restated Certificate Principal Balance of this
Pooling and Servicing Certificate as of the Issue Date:
Agreement: March 1, 1998 $______________
Cut-off Date: March 1, 1998 Class Principal Balance of all the Class E
Certificates as of the Issue Date:
$25,515,013
Issue Date: March 25, 1998
First Distribution Date: Approximate Aggregate unpaid principal balance
April 20, 1998 of the Mortgage Pool as of the Cut-off Date,
after deducting payments of principal due on or
Master Servicer: before such date (the "Initial Pool Balance"):
Midland Loan Services, L.P. $1,020,600,558
Special Servicer: Trustee and REMIC Administrator:
Lennar Partners, Inc. Norwest Bank Minnesota, National Association
Mortgage Loan Seller:
NationsBank, N.A. CUSIP No. 63859C AW 3
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF 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.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN NATIONSLINK
FUNDING CORPORATION, NATIONSBANK, N.A., NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, MIDLAND LOAN SERVICES, L.P., LENNAR PARTNERS, INC. OR ANY OF THEIR
RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER
PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (I) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR A 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 (EACH A "PLAN") OR (II) A PERSON ACTING ON
BEHALF OF OR USING THE ASSETS OF ANY SUCH PLAN (INCLUDING AN ENTITY WHOSE
UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF INVESTMENT IN THE ENTITY BY
SUCH PLAN AND THE APPLICATION OF DEPARTMENT OF LABOR REGULATION ss. 2510.3-101),
OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER
CIRCUMSTANCES WHEREBY THE PURCHASE AND HOLDING OF SUBORDINATE CERTIFICATES BY
SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE PROHIBITED TRANSACTION
PROVISIONS OF ERISA AND THE CODE UNDER PROHIBITED TRANSACTION CLASS EXEMPTION
95-60 OR (B) IF SUCH CERTIFICATE IS PRESENTED FOR REGISTRATION IN THE NAME OF A
PERSON DESCRIBED IN CLAUSES (I) OR (II) ABOVE, AN OPINION OF COUNSEL IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR TO THE
EFFECT THAT SUCH ACQUISITION AND HOLDING OF SUCH CERTIFICATE BY SUCH PROPOSED
PURCHASER OR TRANSFEREE WILL NOT RESULT IN THE ASSETS OF THE TRUST FUND BEING
DEEMED TO BE "PLAN ASSETS" AND SUBJECT TO THE FIDUCIARY RESPONSIBILITY
PROVISIONS OF ERISA, THE PROHIBITED TRANSACTION PROVISIONS OF THE CODE OR THE
PROVISIONS OF ANY SIMILAR LAW, WILL NOT CONSTITUTE OR RESULT IN A "PROHIBITED
TRANSACTION" WITHIN THE MEANING OF ERISA, SECTION 4975 OF THE CODE OR ANY
SIMILAR LAW, AND WILL NOT SUBJECT THE TRUSTEE, THE CERTIFICATE REGISTRAR, THE
MASTER SERVICER, THE SPECIAL SERVICER, THE PLACEMENT AGENT OR THE DEPOSITOR TO
ANY OBLIGATION OR LIABILITY (INCLUDING OBLIGATIONS OR LIABILITIES UNDER ERISA,
SECTION 4975 OF THE CODE OR ANY SUCH SIMILAR LAW) IN ADDITION TO THOSE SET FORTH
IN THE AGREEMENT. THE TRANSFEREE OF A BENEFICIAL INTEREST IN A CERTIFICATE THAT
IS A BOOK-ENTRY CERTIFICATE SHALL BE DEEMED TO REPRESENT THAT IT IS NOT A PERSON
DESCRIBED IN CLAUSES (I) OR (II) ABOVE.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR INTEREST"
IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF OF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the principal
balance of this Certificate (its "Certificate Principal Balance") as of the
Issue Date by the aggregate principal balance of all the Certificates of the
same Class as this Certificate (their "Class Principal Balance") as of the Issue
Date) in that certain beneficial ownership interest in the Trust Fund evidenced
by all the Certificates of the same Class as this Certificate. The Trust Fund
was created and the Certificates were issued pursuant to an Amended and Restated
Pooling and Servicing Agreement, dated as specified above (the "Agreement"),
among NationsLink Funding Corporation, as Depositor, and the Mortgage Loan
Seller, Master Servicer, Special Servicer, Trustee and REMIC Administrator
identified above. To the extent not defined herein, the capitalized terms used
herein have the respective meanings assigned in the Agreement. This Certificate
is issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
20th day of each month or, if such 20th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed pursuant to the Agreement
on the applicable Distribution Date in respect of the Class of Certificates to
which this Certificate belongs. All distributions made under the Agreement in
respect of this Certificate will be made by the Trustee by wire transfer in
immediately available funds to the account of the Person entitled thereto at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate) will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the offices of the Certificate Registrar appointed as provided in the
Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without coupons
in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer or
exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
For so long as this Certificate is registered in the name of Cede & Co., or
in such other name as is requested by an authorized representative of DTC,
transfers of interests in this Certificate shall be made through the book-entry
facilities of DTC.
Prior to due presentment of this Certificate for registration of transfer,
the Depositor, the Mortgage Loan Seller, 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 this Certificate is
registered as the owner hereof for all purposes, and none of the Depositor, the
Mortgage Loan Seller, the Master Servicer, the Special Servicer, the Trustee,
the REMIC Administrator, the Certificate Registrar or any such agent shall be
affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall terminate
upon distribution (or provision for distribution) to the Certificateholders of
all amounts held by or on behalf of the Trustee and required to be distributed
to them pursuant to the Agreement following the earlier of (i) 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, and (ii) the purchase by the
Master Servicer or by any Majority Certificateholder of the Controlling Class
(other than the Depositor or the Mortgage Loan Seller) at a price determined as
provided in the Agreement of all Mortgage Loans and any REO Properties remaining
in the Trust Fund. The Agreement permits, but does not require, any such
Majority Certificateholder or the Master Servicer to purchase from the Trust
Fund all Mortgage Loans and any REO Properties remaining therein. The exercise
of such right will effect early retirement of the Certificates; however, such
right to purchase is subject to the aggregate Stated Principal Balance of the
Mortgage Pool at the time of purchase being less than 1% of the Initial Pool
Balance specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Mortgage Loan Seller, the Master Servicer, the Special Servicer,
the Trustee and the REMIC Administrator thereunder and the rights of the
Certificateholders thereunder, at any time by the Depositor, the Mortgage Loan
Seller, the Master Servicer, the Special Servicer, the Trustee and the REMIC
Administrator with the consent of the Holders of Certificates entitled to at
least 51% of the Voting Rights allocated to the affected Classes. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain circumstances,
including any amendment necessary to maintain the status of REMIC I or REMIC II
as a REMIC, without the consent of the Holders of any of the Certificates.
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 Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws of
the State of New York that are applicable to agreements negotiated, made and to
be performed in said State, and the obligations, rights and remedies of the
Holder hereof shall be determined in accordance with such laws.
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Norwest Bank Minnesota, National Association,
as Trustee
By:________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class E Certificates referred to in the within-mentioned
Agreement.
Dated:
Norwest Bank Minnesota, National Association,
as Certificate Registrar
By:________________________________
Authorized Officer
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto ___________________________ (please print or typewrite name and address
including postal zip code of assignee) the beneficial ownership interest in the
Trust Fund evidenced by the within Commercial Mortgage Pass-Through Certificate
and hereby authorize(s) the registration of transfer of such interest to the
above named assignee on the Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named assignee
and delivery of such Commercial Mortgage Pass-Through Certificate to the
following address: ____________________________________________________________.
Dated:
_____________________________________
Signature by or on behalf of Assignor
_____________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise,
in immediately available funds, to _____________________________________________
for the account of ____________________________________________________________.
Distributions made by check (such check to be made payable to
_____________________________) and all applicable statements and notices should
be mailed to ___________________________________________________________.
This information is provided by ____________________________, the assignee
named above, or ____________________________________________________, as its
agent.
<PAGE>
Exhibit A-10
Form of Class F Certificate
CLASS F COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 1998-1
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by
NATIONSLINK FUNDING CORPORATION
Pass-Through Rate: Certificate No. F-__
______% per annum
Date of Amended and Restated Certificate Principal Balance of this
Pooling and Servicing Certificate as of the Issue Date:
Agreement: March 1, 1998 $______________
Cut-off Date: March 1, 1998 Class Principal Balance of all the Class F
Certificates as of the Issue Date:
$51,030,027
Issue Date: March 25, 1998
First Distribution Date: Approximate Aggregate unpaid principal balance
April 20, 1998 of the Mortgage Pool as of the Cut-off Date,
after deducting payments of principal due on or
Master Servicer: before such date (the "Initial Pool Balance"):
Midland Loan Services, L.P. $1,020,600,558
Special Servicer: Trustee and REMIC Administrator:
Lennar Partners, Inc. Norwest Bank Minnesota, National Association
Mortgage Loan Seller:
NationsBank, N.A. CUSIP No. 63859C AX 1
<PAGE>
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF 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.]
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN NATIONSLINK
FUNDING CORPORATION, NATIONSBANK, N.A., NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, MIDLAND LOAN SERVICES, L.P., LENNAR PARTNERS, INC. OR ANY OF THEIR
RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER
PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS, IS SUBORDINATE TO
THE ONE OR MORE CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE EXTENT
PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE AGREEMENT REFERRED TO HEREIN.
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.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR INTEREST"
IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE. THIS CERTIFICATE
IS ISSUED ON MARCH 25, 1998, AND BASED ON ITS ISSUE PRICE OF 93.07900%,
INCLUDING ACCRUED INTEREST, AND A STATED REDEMPTION PRICE AT MATURITY EQUAL TO
ITS INITIAL PRINCIPAL BALANCE (PLUS 5 DAYS OF INTEREST AT THE PASS-THROUGH RATE
HEREON), 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 ZERO USED TO PRICE THIS
CERTIFICATE: (I) THE AMOUNT OF OID AS A PERCENTAGE OF THE INITIAL PRINCIPAL
BALANCE OF THIS CERTIFICATE IS APPROXIMATELY 7.01891667%; (II) THE ANNUAL YIELD
TO MATURITY OF THIS CERTIFICATE, COMPOUNDED MONTHLY, IS APPROXIMATELY 8.09%; AND
(III) THE AMOUNT OF OID ALLOCABLE TO THE SHORT FIRST ACCRUAL PERIOD MARCH 25,
1998 TO APRIL 20, 1998 AS A PERCENTAGE OF THE INITIAL PRINCIPAL BALANCE OF THIS
CERTIFICATE, CALCULATED USING THE EXACT METHOD, IS APPROXIMATELY 0.03282935%.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (i) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR A 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 (EACH A "PLAN") OR (ii) A PERSON ACTING ON
BEHALF OF OR USING THE ASSETS OF ANY SUCH PLAN (INCLUDING AN ENTITY WHOSE
UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF INVESTMENT IN THE ENTITY BY
SUCH PLAN AND THE APPLICATION OF DEPARTMENT OF LABOR REGULATION ss. 2510.3-101),
OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER
CIRCUMSTANCES WHEREBY THE PURCHASE AND HOLDING OF SUBORDINATE CERTIFICATES BY
SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE PROHIBITED TRANSACTION
PROVISIONS OF ERISA AND THE CODE UNDER PROHIBITED TRANSACTION CLASS EXEMPTION
95-60 OR (B) IF SUCH CERTIFICATE IS PRESENTED FOR REGISTRATION IN THE NAME OF A
PERSON DESCRIBED IN CLAUSES (I) OR (II) ABOVE, AN OPINION OF COUNSEL IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR TO THE
EFFECT THAT SUCH ACQUISITION AND HOLDING OF SUCH CERTIFICATE BY SUCH PROPOSED
PURCHASER OR TRANSFEREE WILL NOT RESULT IN THE ASSETS OF THE TRUST FUND BEING
DEEMED TO BE "PLAN ASSETS" AND SUBJECT TO THE FIDUCIARY RESPONSIBILITY
PROVISIONS OF ERISA, THE PROHIBITED TRANSACTION PROVISIONS OF THE CODE OR THE
PROVISIONS OF ANY SIMILAR LAW, WILL NOT CONSTITUTE OR RESULT IN A "PROHIBITED
TRANSACTION" WITHIN THE MEANING OF ERISA, SECTION 4975 OF THE CODE OR ANY
SIMILAR LAW, AND WILL NOT SUBJECT THE TRUSTEE, THE CERTIFICATE REGISTRAR, THE
MASTER SERVICER, THE SPECIAL SERVICER, THE PLACEMENT AGENT OR THE DEPOSITOR TO
ANY OBLIGATION OR LIABILITY (INCLUDING OBLIGATIONS OR LIABILITIES UNDER ERISA,
SECTION 4975 OF THE CODE OR ANY SUCH SIMILAR LAW) IN ADDITION TO THOSE SET FORTH
IN THE AGREEMENT. THE TRANSFEREE OF A BENEFICIAL INTEREST IN A CERTIFICATE THAT
IS A BOOK-ENTRY CERTIFICATE SHALL BE DEEMED TO REPRESENT THAT IT IS NOT A PERSON
DESCRIBED IN CLAUSES (I) OR (II) ABOVE.
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
AGREEMENT. A TRANSFEREE IS ALSO REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION
LETTER SUBSTANTIALLY IN THE FORM OF EXHIBIT C TO THE AGREEMENT IF SUCH
TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER OR AN INSTITUTIONAL ACCREDITED
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 certifies that [Cede & Co.] is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the principal
balance of this Certificate (its "Certificate Principal Balance") as of the
Issue Date by the aggregate principal balance of all the Certificates of the
same Class as this Certificate (their "Class Principal Balance") as of the Issue
Date) in that certain beneficial ownership interest in the Trust Fund evidenced
by all the Certificates of the same Class as this Certificate. The Trust Fund
was created and the Certificates were issued pursuant to an Amended and Restated
Pooling and Servicing Agreement, dated as specified above (the "Agreement"),
among NationsLink Funding Corporation, as Depositor, and the Mortgage Loan
Seller, Master Servicer, Special Servicer, Trustee and REMIC Administrator
identified above. To the extent not defined herein, the capitalized terms used
herein have the respective meanings assigned in the Agreement. This Certificate
is issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
20th day of each month or, if such 20th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed pursuant to the Agreement
on the applicable Distribution Date in respect of the Class of Certificates to
which this Certificate belongs. All distributions made under the Agreement in
respect of this Certificate will be made by the Trustee by wire transfer in
immediately available funds to the account of the Person entitled thereto at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate) will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the offices of the Certificate Registrar appointed as provided in the
Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without coupons
in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer or
exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
[For so long as this Certificate is registered in the name of Cede & Co.,
or in such other name as is requested by an authorized representative of DTC,
transfers of interests in this Certificate shall be made through the book-entry
facilities of DTC.]
Prior to due presentment of this Certificate for registration of transfer,
the Depositor, the Mortgage Loan Seller, the, 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 this Certificate is
registered as the owner hereof for all purposes, and none of the Depositor, the
Mortgage Loan Seller, the Master Servicer, the Special Servicer, the Trustee,
the REMIC Administrator, the Certificate Registrar or any such agent shall be
affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall terminate
upon distribution (or provision for distribution) to the Certificateholders of
all amounts held by or on behalf of the Trustee and required to be distributed
to them pursuant to the Agreement following the earlier of (i) 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, and (ii) the purchase by the
Master Servicer or by any Majority Certificateholder of the Controlling Class
(other than the Depositor or the Mortgage Loan Seller) at a price determined as
provided in the Agreement of all Mortgage Loans and any REO Properties remaining
in the Trust Fund. The Agreement permits, but does not require, any such
Majority Certificateholder or the Master Servicer to purchase from the Trust
Fund all Mortgage Loans and any REO Properties remaining therein. The exercise
of such right will effect early retirement of the Certificates; however, such
right to purchase is subject to the aggregate Stated Principal Balance of the
Mortgage Pool at the time of purchase being less than 1% of the Initial Pool
Balance specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Mortgage Loan Seller, the Master Servicer, the Special Servicer,
the Trustee and the REMIC Administrator thereunder and the rights of the
Certificateholders thereunder, at any time by the Depositor, the Mortgage Loan
Seller, the Master Servicer, the Special Servicer, the Trustee and the REMIC
Administrator with the consent of the Holders of Certificates entitled to at
least 51% of the Voting Rights allocated to the affected Classes. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain circumstances,
including any amendment necessary to maintain the status of REMIC I or REMIC II
as a REMIC, without the consent of the Holders of any of the Certificates.
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 Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws of
the State of New York that are applicable to agreements negotiated, made and to
be performed in said State, and the obligations, rights and remedies of the
Holder hereof shall be determined in accordance with such laws.
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Norwest Bank Minnesota, National Association,
as Trustee
By:_____________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class F Certificates referred to in the within-mentioned
Agreement.
Dated:
Norwest Bank Minnesota, National Association,
as Certificate Registrar
By:_____________________________
Authorized Officer
<PAGE>
<TABLE>
<CAPTION>
SCHEDULE A
Certificate Balance of Definitive
Certificates exchanged or
transferred for, or issued in
exchange for or upon transfer of,
an interest in this Book-Entry Remaining Principal Amount Notation
Date Certificate of Book-Entry Certificate Made By
- ---- ------------------------------- ------------------------- -------
<S> <C> <C> <C>
</TABLE>
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto _____________________________________________________________ (please print
or typewrite name and address including postal zip code of assignee) the
beneficial ownership interest in the Trust Fund evidenced by the within
Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named assignee
and delivery of such Commercial Mortgage Pass-Through Certificate to the
following address:______________________________________________________.
Dated:
_____________________________________
Signature by or on behalf of Assignor
_____________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise,
in immediately available funds, to _______________ for the account of
____________________.
Distributions made by check (such check to be made payable to __________)
and all applicable statements and notices should be mailed to
____________________________________________________________________________.
This information is provided by ______________, the assignee named above,
or _______________, as its agent.
<PAGE>
Exhibit A-11
Form of Class G Certificate
CLASS G COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 1998-1
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by
NATIONSLINK FUNDING CORPORATION
Pass-Through Rate: Certificate No. G-___
____% per annum
Date of Amended and Restated Certificate Principal Balance of this
Pooling and Servicing Certificate as of the Issue Date:
Agreement: March 1, 1998 $______________
Cut-off Date: March 1, 1998 Class Principal Balance of all the Class G
Certificates as of the Issue Date:
$10,206,005
Issue Date: March 25, 1998
First Distribution Date: Approximate Aggregate unpaid principal balance
April 20, 1998 of the Mortgage Pool as of the Cut-off Date,
after deducting payments of principal due on or
Master Servicer: before such date (the "Initial Pool Balance"):
Midland Loan Services, L.P. $1,020,600,558
Special Servicer: Trustee and REMIC Administrator:
Lennar Partners, Inc. Norwest Bank Minnesota, National Association
Mortgage Loan Seller:
NationsBank, N.A. CUSIP No. 63859C AY 9
<PAGE>
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF 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.]
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN NATIONSLINK
FUNDING CORPORATION, NATIONSBANK, N.A., NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, MIDLAND LOAN SERVICES, L.P., LENNAR PARTNERS, INC. OR ANY OF THEIR
RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER
PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS, IS SUBORDINATE TO
THE ONE OR MORE CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE EXTENT
PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE AGREEMENT REFERRED TO HEREIN.
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.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR INTEREST"
IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE. THIS CERTIFICATE
IS ISSUED ON MARCH 25, 1998, AND BASED ON ITS ISSUE PRICE OF 75.75433%,
INCLUDING ACCRUED INTEREST, AND A STATED REDEMPTION PRICE AT MATURITY EQUAL TO
ITS INITIAL PRINCIPAL BALANCE (PLUS 5 DAYS OF INTEREST AT THE PASS-THROUGH RATE
HEREON), 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 ZERO USED TO PRICE THIS
CERTIFICATE: (I) THE AMOUNT OF OID AS A PERCENTAGE OF THE INITIAL PRINCIPAL
BALANCE OF THIS CERTIFICATE IS APPROXIMATELY 24.31511111%; (II) THE ANNUAL YIELD
TO MATURITY OF THIS CERTIFICATE, COMPOUNDED MONTHLY, IS APPROXIMATELY 8.67%; AND
(III) THE AMOUNT OF OID ALLOCABLE TO THE SHORT FIRST ACCRUAL PERIOD MARCH 25,
1998 TO APRIL 20, 1998 AS A PERCENTAGE OF THE INITIAL PRINCIPAL BALANCE OF THIS
CERTIFICATE, CALCULATED USING THE EXACT METHOD, IS APPROXIMATELY 0.10840622%.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (i) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR A 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 (EACH A "PLAN") OR (ii) A PERSON ACTING ON
BEHALF OF OR USING THE ASSETS OF ANY SUCH PLAN (INCLUDING AN ENTITY WHOSE
UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF INVESTMENT IN THE ENTITY BY
SUCH PLAN AND THE APPLICATION OF DEPARTMENT OF LABOR REGULATION ss. 2510.3-101),
OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER
CIRCUMSTANCES WHEREBY THE PURCHASE AND HOLDING OF SUBORDINATE CERTIFICATES BY
SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE PROHIBITED TRANSACTION
PROVISIONS OF ERISA AND THE CODE UNDER PROHIBITED TRANSACTION CLASS EXEMPTION
95-60 OR (B) IF SUCH CERTIFICATE IS PRESENTED FOR REGISTRATION IN THE NAME OF A
PERSON DESCRIBED IN CLAUSES (I) OR (II) ABOVE, AN OPINION OF COUNSEL IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR TO THE
EFFECT THAT SUCH ACQUISITION AND HOLDING OF SUCH CERTIFICATE BY SUCH PROPOSED
PURCHASER OR TRANSFEREE WILL NOT RESULT IN THE ASSETS OF THE TRUST FUND BEING
DEEMED TO BE "PLAN ASSETS" AND SUBJECT TO THE FIDUCIARY RESPONSIBILITY
PROVISIONS OF ERISA, THE PROHIBITED TRANSACTION PROVISIONS OF THE CODE OR THE
PROVISIONS OF ANY SIMILAR LAW, WILL NOT CONSTITUTE OR RESULT IN A "PROHIBITED
TRANSACTION" WITHIN THE MEANING OF ERISA, SECTION 4975 OF THE CODE OR ANY
SIMILAR LAW, AND WILL NOT SUBJECT THE TRUSTEE, THE CERTIFICATE REGISTRAR, THE
MASTER SERVICER, THE SPECIAL SERVICER, THE PLACEMENT AGENT OR THE DEPOSITOR TO
ANY OBLIGATION OR LIABILITY (INCLUDING OBLIGATIONS OR LIABILITIES UNDER ERISA,
SECTION 4975 OF THE CODE OR ANY SUCH SIMILAR LAW) IN ADDITION TO THOSE SET FORTH
IN THE AGREEMENT. THE TRANSFEREE OF A BENEFICIAL INTEREST IN A CERTIFICATE THAT
IS A BOOK-ENTRY CERTIFICATE SHALL BE DEEMED TO REPRESENT THAT IT IS NOT A PERSON
DESCRIBED IN CLAUSES (I) OR (II) ABOVE.
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
AGREEMENT. A TRANSFEREE IS ALSO REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION
LETTER SUBSTANTIALLY IN THE FORM OF EXHIBIT C TO THE AGREEMENT IF SUCH
TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER OR AN INSTITUTIONAL ACCREDITED
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 certifies that [Cede & Co.] is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the principal
balance of this Certificate (its "Certificate Principal Balance") as of the
Issue Date by the aggregate principal balance of all the Certificates of the
same Class as this Certificate (their "Class Principal Balance") as of the Issue
Date) in that certain beneficial ownership interest in the Trust Fund evidenced
by all the Certificates of the same Class as this Certificate. The Trust Fund
was created and the Certificates were issued pursuant to an Amended and Restated
Pooling and Servicing Agreement, dated as specified above (the "Agreement"),
among NationsLink Funding Corporation, as Depositor, and the Mortgage Loan
Seller, Master Servicer, Special Servicer, Trustee and REMIC Administrator
identified above. To the extent not defined herein, the capitalized terms used
herein have the respective meanings assigned in the Agreement. This Certificate
is issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
20th day of each month or, if such 20th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed pursuant to the Agreement
on the applicable Distribution Date in respect of the Class of Certificates to
which this Certificate belongs. All distributions made under the Agreement in
respect of this Certificate will be made by the Trustee by wire transfer in
immediately available funds to the account of the Person entitled thereto at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate) will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the offices of the Certificate Registrar appointed as provided in the
Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without coupons
in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer or
exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
[For so long as this Certificate is registered in the name of Cede & Co.,
or in such other name as is requested by an authorized representative of DTC,
transfers of interests in this Certificate shall be made through the book-entry
facilities of DTC.]
Prior to due presentment of this Certificate for registration of transfer,
the Depositor, the Mortgage Loan Seller, the, 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 this Certificate is
registered as the owner hereof for all purposes, and none of the Depositor, the
Mortgage Loan Seller, the Master Servicer, the Special Servicer, the Trustee,
the REMIC Administrator, the Certificate Registrar or any such agent shall be
affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall terminate
upon distribution (or provision for distribution) to the Certificateholders of
all amounts held by or on behalf of the Trustee and required to be distributed
to them pursuant to the Agreement following the earlier of (i) 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, and (ii) the purchase by the
Master Servicer or by any Majority Certificateholder of the Controlling Class
(other than the Depositor or the Mortgage Loan Seller) at a price determined as
provided in the Agreement of all Mortgage Loans and any REO Properties remaining
in the Trust Fund. The Agreement permits, but does not require, any such
Majority Certificateholder or the Master Servicer to purchase from the Trust
Fund all Mortgage Loans and any REO Properties remaining therein. The exercise
of such right will effect early retirement of the Certificates; however, such
right to purchase is subject to the aggregate Stated Principal Balance of the
Mortgage Pool at the time of purchase being less than 1% of the Initial Pool
Balance specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Mortgage Loan Seller, the Master Servicer, the Special Servicer,
the Trustee and the REMIC Administrator thereunder and the rights of the
Certificateholders thereunder, at any time by the Depositor, the Mortgage Loan
Seller, the Master Servicer, the Special Servicer, the Trustee and the REMIC
Administrator with the consent of the Holders of Certificates entitled to at
least 51% of the Voting Rights allocated to the affected Classes. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain circumstances,
including any amendment necessary to maintain the status of REMIC I or REMIC II
as a REMIC, without the consent of the Holders of any of the Certificates.
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 Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws of
the State of New York that are applicable to agreements negotiated, made and to
be performed in said State, and the obligations, rights and remedies of the
Holder hereof shall be determined in accordance with such laws.
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Norwest Bank Minnesota, National Association,
as Trustee
By:___________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class G Certificates referred to in the within-mentioned
Agreement.
Dated:
Norwest Bank Minnesota, National Association,
as Certificate Registrar
By:__________________________________
Authorized Officer
<PAGE>
<TABLE>
<CAPTION>
SCHEDULE A
Certificate Balance of Definitive
Certificates exchanged or
transferred for, or issued in
exchange for or upon transfer of,
an interest in this Book-Entry Remaining Principal Amount Notation
Date Certificate of Book-Entry Certificate Made By
---- ----------- ------------------------- -------
<S> <C> <C> <C>
</TABLE>
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto_____________________________________________________ (please print or
typewrite name and address including postal zip code of assignee) the beneficial
ownership interest in the Trust Fund evidenced by the within Commercial Mortgage
Pass-Through Certificate and hereby authorize(s) the registration of transfer of
such interest to the above named assignee on the Certificate Register of the
Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named assignee
and delivery of such Commercial Mortgage Pass-Through Certificate to the
following address:______________________________________________________.
Dated:
_____________________________________
Signature by or on behalf of Assignor
_____________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise,
in immediately available funds, to
___________________________________________________.
Distributions made by check (such check to be made payable to ___________)
and all applicable statements and notices should be mailed
to _______________________________________________ for the account of
_____________________________________.
This information is provided by _______________, the assignee named above,
or_______________________________, as its agent.
<PAGE>
Exhibit A-12
Form of Class H Certificate
CLASS H COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 1998-1
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by
NATIONSLINK FUNDING CORPORATION
Pass-Through Rate: Certificate No. H-___
____% per annum
Date of Amended and Restated Certificate Principal Balance of this
Pooling and Servicing Certificate as of the Issue Date:
Agreement: March 1, 1998 $______________
Cut-off Date: March 1, 1998 Class Principal Balance of all the Class H
Certificates as of the Issue Date:
$25,515,013
Issue Date: March 25, 1998
First Distribution Date: Approximate Aggregate unpaid principal balance
April 20, 1998 of the Mortgage Pool as of the Cut-off Date,
after deducting payments of principal due on or
Master Servicer: before such date (the "Initial Pool Balance"):
Midland Loan Services, L.P. $1,020,600,558
Special Servicer: Trustee and REMIC Administrator:
Lennar Partners, Inc. Norwest Bank Minnesota, National Association
Mortgage Loan Seller:
NationsBank, N.A. CUSIP No. 63859C AZ 6
<PAGE>
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF 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.]
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN NATIONSLINK
FUNDING CORPORATION, NATIONSBANK, N.A., NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, MIDLAND LOAN SERVICES, L.P., LENNAR PARTNERS, INC. OR ANY OF THEIR
RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER
PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS, IS SUBORDINATE TO
THE ONE OR MORE CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE EXTENT
PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE AGREEMENT REFERRED TO HEREIN.
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.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR INTEREST"
IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE. THIS CERTIFICATE
IS ISSUED ON MARCH 25, 1998, AND BASED ON ITS ISSUE PRICE OF 70.59333%,
INCLUDING ACCRUED INTEREST, AND A STATED REDEMPTION PRICE AT MATURITY EQUAL TO
ITS INITIAL PRINCIPAL BALANCE (PLUS 5 DAYS OF INTEREST AT THE PASS-THROUGH RATE
HEREON), 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 ZERO USED TO PRICE THIS
CERTIFICATE: (I) THE AMOUNT OF OID AS A PERCENTAGE OF THE INITIAL PRINCIPAL
BALANCE OF THIS CERTIFICATE IS APPROXIMATELY 29.47611111%; (II) THE ANNUAL YIELD
TO MATURITY OF THIS CERTIFICATE, COMPOUNDED MONTHLY, IS APPROXIMATELY 9.63%; AND
(III) THE AMOUNT OF OID ALLOCABLE TO THE SHORT FIRST ACCRUAL PERIOD MARCH 25,
1998 TO APRIL 20, 1998 AS A PERCENTAGE OF THE INITIAL PRINCIPAL BALANCE OF THIS
CERTIFICATE, CALCULATED USING THE EXACT METHOD, IS APPROXIMATELY 0.12450052%.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (i) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR A 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 (EACH A "PLAN") OR (ii) A PERSON ACTING ON
BEHALF OF OR USING THE ASSETS OF ANY SUCH PLAN (INCLUDING AN ENTITY WHOSE
UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF INVESTMENT IN THE ENTITY BY
SUCH PLAN AND THE APPLICATION OF DEPARTMENT OF LABOR REGULATION ss. 2510.3-101),
OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER
CIRCUMSTANCES WHEREBY THE PURCHASE AND HOLDING OF SUBORDINATE CERTIFICATES BY
SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE PROHIBITED TRANSACTION
PROVISIONS OF ERISA AND THE CODE UNDER PROHIBITED TRANSACTION CLASS EXEMPTION
95-60 OR (B) IF SUCH CERTIFICATE IS PRESENTED FOR REGISTRATION IN THE NAME OF A
PERSON DESCRIBED IN CLAUSES (I) OR (II) ABOVE, AN OPINION OF COUNSEL IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR TO THE
EFFECT THAT SUCH ACQUISITION AND HOLDING OF SUCH CERTIFICATE BY SUCH PROPOSED
PURCHASER OR TRANSFEREE WILL NOT RESULT IN THE ASSETS OF THE TRUST FUND BEING
DEEMED TO BE "PLAN ASSETS" AND SUBJECT TO THE FIDUCIARY RESPONSIBILITY
PROVISIONS OF ERISA, THE PROHIBITED TRANSACTION PROVISIONS OF THE CODE OR THE
PROVISIONS OF ANY SIMILAR LAW, WILL NOT CONSTITUTE OR RESULT IN A "PROHIBITED
TRANSACTION" WITHIN THE MEANING OF ERISA, SECTION 4975 OF THE CODE OR ANY
SIMILAR LAW, AND WILL NOT SUBJECT THE TRUSTEE, THE CERTIFICATE REGISTRAR, THE
MASTER SERVICER, THE SPECIAL SERVICER, THE PLACEMENT AGENT OR THE DEPOSITOR TO
ANY OBLIGATION OR LIABILITY (INCLUDING OBLIGATIONS OR LIABILITIES UNDER ERISA,
SECTION 4975 OF THE CODE OR ANY SUCH SIMILAR LAW) IN ADDITION TO THOSE SET FORTH
IN THE AGREEMENT. THE TRANSFEREE OF A BENEFICIAL INTEREST IN A CERTIFICATE THAT
IS A BOOK-ENTRY CERTIFICATE SHALL BE DEEMED TO REPRESENT THAT IT IS NOT A PERSON
DESCRIBED IN CLAUSES (I) OR (II) ABOVE.
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
AGREEMENT. A TRANSFEREE IS ALSO REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION
LETTER SUBSTANTIALLY IN THE FORM OF EXHIBIT C TO THE AGREEMENT IF SUCH
TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER OR AN INSTITUTIONAL ACCREDITED
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 certifies that [Cede & Co.] is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the principal
balance of this Certificate (its "Certificate Principal Balance") as of the
Issue Date by the aggregate principal balance of all the Certificates of the
same Class as this Certificate (their "Class Principal Balance") as of the Issue
Date) in that certain beneficial ownership interest in the Trust Fund evidenced
by all the Certificates of the same Class as this Certificate. The Trust Fund
was created and the Certificates were issued pursuant to an Amended and Restated
Pooling and Servicing Agreement, dated as specified above (the "Agreement"),
among NationsLink Funding Corporation, as Depositor, and the Mortgage Loan
Seller, Master Servicer, Special Servicer, Trustee and REMIC Administrator
identified above. To the extent not defined herein, the capitalized terms used
herein have the respective meanings assigned in the Agreement. This Certificate
is issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
20th day of each month or, if such 20th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed pursuant to the Agreement
on the applicable Distribution Date in respect of the Class of Certificates to
which this Certificate belongs. All distributions made under the Agreement in
respect of this Certificate will be made by the Trustee by wire transfer in
immediately available funds to the account of the Person entitled thereto at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate) will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the offices of the Certificate Registrar appointed as provided in the
Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without coupons
in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer or
exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
[For so long as this Certificate is registered in the name of Cede & Co.,
or in such other name as is requested by an authorized representative of DTC,
transfers of interests in this Certificate shall be made through the book-entry
facilities of DTC.]
Prior to due presentment of this Certificate for registration of transfer,
the Depositor, the Mortgage Loan Seller, the, 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 this Certificate is
registered as the owner hereof for all purposes, and none of the Depositor, the
Mortgage Loan Seller, the Master Servicer, the Special Servicer, the Trustee,
the REMIC Administrator, the Certificate Registrar or any such agent shall be
affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall terminate
upon distribution (or provision for distribution) to the Certificateholders of
all amounts held by or on behalf of the Trustee and required to be distributed
to them pursuant to the Agreement following the earlier of (i) 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, and (ii) the purchase by the
Master Servicer or by any Majority Certificateholder of the Controlling Class
(other than the Depositor or the Mortgage Loan Seller) at a price determined as
provided in the Agreement of all Mortgage Loans and any REO Properties remaining
in the Trust Fund. The Agreement permits, but does not require, any such
Majority Certificateholder or the Master Servicer to purchase from the Trust
Fund all Mortgage Loans and any REO Properties remaining therein. The exercise
of such right will effect early retirement of the Certificates; however, such
right to purchase is subject to the aggregate Stated Principal Balance of the
Mortgage Pool at the time of purchase being less than 1% of the Initial Pool
Balance specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Mortgage Loan Seller, the Master Servicer, the Special Servicer,
the Trustee and the REMIC Administrator thereunder and the rights of the
Certificateholders thereunder, at any time by the Depositor, the Mortgage Loan
Seller, the Master Servicer, the Special Servicer, the Trustee and the REMIC
Administrator with the consent of the Holders of Certificates entitled to at
least 51% of the Voting Rights allocated to the affected Classes. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain circumstances,
including any amendment necessary to maintain the status of REMIC I or REMIC II
as a REMIC, without the consent of the Holders of any of the Certificates.
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 Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws of
the State of New York that are applicable to agreements negotiated, made and to
be performed in said State, and the obligations, rights and remedies of the
Holder hereof shall be determined in accordance with such laws.
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Norwest Bank Minnesota, National Association,
as Trustee
By:_______________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class H Certificates referred to in the within-mentioned
Agreement.
Dated:
Norwest Bank Minnesota, National Association,
as Certificate Registrar
By:_______________________________
Authorized Officer
<PAGE>
<TABLE>
<CAPTION>
SCHEDULE A
Certificate Balance of Definitive
Certificates exchanged or
transferred for, or issued in
exchange for or upon transfer of,
an interest in this Book-Entry Remaining Principal Amount Notation
Date Certificate of Book-Entry Certificate Made By
---- ----------- ------------------------- -------
<S> <C> <C> <C>
</TABLE>
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto
_______________________________________________________________________________.
(please print or typewrite name and address including postal zip code of
assignee) the beneficial ownership interest in the Trust Fund evidenced by the
within Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named assignee
and delivery of such Commercial Mortgage Pass-Through Certificate to the
following address:_____________________________________________________________.
Dated:
_____________________________________
Signature by or on behalf of Assignor
_____________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise,
in immediately available funds, to ____________ for the account of
_______________________.
Distributions made by check (such check to be made payable to ____________)
and all applicable statements and notices should be mailed
to___________________________.
This information is provided by _________________, the assignee named
above, or ____________________, as its agent.
<PAGE>
Exhibit A-13
Form of Class J Certificate
CLASS J COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 1998-1
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by
NATIONSLINK FUNDING CORPORATION
Pass-Through Rate: Certificate No. J-___
____% per annum
Date of Amended and Restated Certificate Principal Balance of this
Pooling and Servicing Certificate as of the Issue Date:
Agreement: March 1, 1998 $______________
Cut-off Date: March 1, 1998 Class Principal Balance of all the Class J
Certificates as of the Issue Date:
$12,247,206
Issue Date: March 25, 1998
First Distribution Date: Approximate Aggregate unpaid principal balance
April 20, 1998 of the Mortgage Pool as of the Cut-off Date,
after deducting payments of principal due on or
Master Servicer: before such date (the "Initial Pool Balance"):
Midland Loan Services, L.P. $1,020,600,558
Special Servicer: Trustee and REMIC Administrator:
Lennar Partners, Inc. Norwest Bank Minnesota, National Association
Mortgage Loan Seller:
NationsBank, N.A. CUSIP No. 63859C BA 0
<PAGE>
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF 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.]
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN NATIONSLINK
FUNDING CORPORATION, NATIONSBANK, N.A., NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, MIDLAND LOAN SERVICES, L.P., LENNAR PARTNERS, INC. OR ANY OF THEIR
RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER
PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS, IS SUBORDINATE TO
THE ONE OR MORE CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE EXTENT
PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE AGREEMENT REFERRED TO HEREIN.
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.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR INTEREST"
IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE. THIS CERTIFICATE
IS ISSUED ON MARCH 25, 1998, AND BASED ON ITS ISSUE PRICE OF 58.12733%,
INCLUDING ACCRUED INTEREST, AND A STATED REDEMPTION PRICE AT MATURITY EQUAL TO
ITS INITIAL PRINCIPAL BALANCE (PLUS 5 DAYS OF INTEREST AT THE PASS-THROUGH RATE
HEREON), 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 ZERO USED TO PRICE THIS
CERTIFICATE: (I) THE AMOUNT OF OID AS A PERCENTAGE OF THE INITIAL PRINCIPAL
BALANCE OF THIS CERTIFICATE IS APPROXIMATELY 41.94211111%; (II) THE ANNUAL YIELD
TO MATURITY OF THIS CERTIFICATE, COMPOUNDED MONTHLY, IS APPROXIMATELY 12.35%;
AND (III) THE AMOUNT OF OID ALLOCABLE TO THE SHORT FIRST ACCRUAL PERIOD MARCH
25, 1998 TO APRIL 20, 1998 AS A PERCENTAGE OF THE INITIAL PRINCIPAL BALANCE OF
THIS CERTIFICATE, CALCULATED USING THE EXACT METHOD, IS APPROXIMATELY
0.15094969%.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (i) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR A 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 (EACH A "PLAN") OR (ii) A PERSON ACTING ON
BEHALF OF OR USING THE ASSETS OF ANY SUCH PLAN (INCLUDING AN ENTITY WHOSE
UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF INVESTMENT IN THE ENTITY BY
SUCH PLAN AND THE APPLICATION OF DEPARTMENT OF LABOR REGULATION ss. 2510.3-101),
OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER
CIRCUMSTANCES WHEREBY THE PURCHASE AND HOLDING OF SUBORDINATE CERTIFICATES BY
SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE PROHIBITED TRANSACTION
PROVISIONS OF ERISA AND THE CODE UNDER PROHIBITED TRANSACTION CLASS EXEMPTION
95-60 OR (B) IF SUCH CERTIFICATE IS PRESENTED FOR REGISTRATION IN THE NAME OF A
PERSON DESCRIBED IN CLAUSES (I) OR (II) ABOVE, AN OPINION OF COUNSEL IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR TO THE
EFFECT THAT SUCH ACQUISITION AND HOLDING OF SUCH CERTIFICATE BY SUCH PROPOSED
PURCHASER OR TRANSFEREE WILL NOT RESULT IN THE ASSETS OF THE TRUST FUND BEING
DEEMED TO BE "PLAN ASSETS" AND SUBJECT TO THE FIDUCIARY RESPONSIBILITY
PROVISIONS OF ERISA, THE PROHIBITED TRANSACTION PROVISIONS OF THE CODE OR THE
PROVISIONS OF ANY SIMILAR LAW, WILL NOT CONSTITUTE OR RESULT IN A "PROHIBITED
TRANSACTION" WITHIN THE MEANING OF ERISA, SECTION 4975 OF THE CODE OR ANY
SIMILAR LAW, AND WILL NOT SUBJECT THE TRUSTEE, THE CERTIFICATE REGISTRAR, THE
MASTER SERVICER, THE SPECIAL SERVICER, THE PLACEMENT AGENT OR THE DEPOSITOR TO
ANY OBLIGATION OR LIABILITY (INCLUDING OBLIGATIONS OR LIABILITIES UNDER ERISA,
SECTION 4975 OF THE CODE OR ANY SUCH SIMILAR LAW) IN ADDITION TO THOSE SET FORTH
IN THE AGREEMENT. THE TRANSFEREE OF A BENEFICIAL INTEREST IN A CERTIFICATE THAT
IS A BOOK-ENTRY CERTIFICATE SHALL BE DEEMED TO REPRESENT THAT IT IS NOT A PERSON
DESCRIBED IN CLAUSES (I) OR (II) ABOVE.
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
AGREEMENT. A TRANSFEREE IS ALSO REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION
LETTER SUBSTANTIALLY IN THE FORM OF EXHIBIT C TO THE AGREEMENT IF SUCH
TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER OR AN INSTITUTIONAL ACCREDITED
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 certifies that [Cede & Co.] is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the principal
balance of this Certificate (its "Certificate Principal Balance") as of the
Issue Date by the aggregate principal balance of all the Certificates of the
same Class as this Certificate (their "Class Principal Balance") as of the Issue
Date) in that certain beneficial ownership interest in the Trust Fund evidenced
by all the Certificates of the same Class as this Certificate. The Trust Fund
was created and the Certificates were issued pursuant to an Amended and Restated
Pooling and Servicing Agreement, dated as specified above (the "Agreement"),
among NationsLink Funding Corporation, as Depositor, and the Mortgage Loan
Seller, Master Servicer, Special Servicer, Trustee and REMIC Administrator
identified above. To the extent not defined herein, the capitalized terms used
herein have the respective meanings assigned in the Agreement. This Certificate
is issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
20th day of each month or, if such 20th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed pursuant to the Agreement
on the applicable Distribution Date in respect of the Class of Certificates to
which this Certificate belongs. All distributions made under the Agreement in
respect of this Certificate will be made by the Trustee by wire transfer in
immediately available funds to the account of the Person entitled thereto at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate) will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the offices of the Certificate Registrar appointed as provided in the
Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without coupons
in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer or
exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
[For so long as this Certificate is registered in the name of Cede & Co.,
or in such other name as is requested by an authorized representative of DTC,
transfers of interests in this Certificate shall be made through the book-entry
facilities of DTC.]
Prior to due presentment of this Certificate for registration of transfer,
the Depositor, the Mortgage Loan Seller, the, 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 this Certificate is
registered as the owner hereof for all purposes, and none of the Depositor, the
Mortgage Loan Seller, the Master Servicer, the Special Servicer, the Trustee,
the REMIC Administrator, the Certificate Registrar or any such agent shall be
affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall terminate
upon distribution (or provision for distribution) to the Certificateholders of
all amounts held by or on behalf of the Trustee and required to be distributed
to them pursuant to the Agreement following the earlier of (i) 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, and (ii) the purchase by the
Master Servicer or by any Majority Certificateholder of the Controlling Class
(other than the Depositor or the Mortgage Loan Seller) at a price determined as
provided in the Agreement of all Mortgage Loans and any REO Properties remaining
in the Trust Fund. The Agreement permits, but does not require, any such
Majority Certificateholder or the Master Servicer to purchase from the Trust
Fund all Mortgage Loans and any REO Properties remaining therein. The exercise
of such right will effect early retirement of the Certificates; however, such
right to purchase is subject to the aggregate Stated Principal Balance of the
Mortgage Pool at the time of purchase being less than 1% of the Initial Pool
Balance specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Mortgage Loan Seller, the Master Servicer, the Special Servicer,
the Trustee and the REMIC Administrator thereunder and the rights of the
Certificateholders thereunder, at any time by the Depositor, the Mortgage Loan
Seller, the Master Servicer, the Special Servicer, the Trustee and the REMIC
Administrator with the consent of the Holders of Certificates entitled to at
least 51% of the Voting Rights allocated to the affected Classes. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain circumstances,
including any amendment necessary to maintain the status of REMIC I or REMIC II
as a REMIC, without the consent of the Holders of any of the Certificates.
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 Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws of
the State of New York that are applicable to agreements negotiated, made and to
be performed in said State, and the obligations, rights and remedies of the
Holder hereof shall be determined in accordance with such laws.
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Norwest Bank Minnesota, National Association,
as Trustee
By:_____________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class J Certificates referred to in the within-mentioned
Agreement.
Dated:
Norwest Bank Minnesota, National Association,
as Certificate Registrar
By:____________________________________
Authorized Officer
<PAGE>
<TABLE>
<CAPTION>
SCHEDULE A
Certificate Balance of Definitive
Certificates exchanged or
transferred for, or issued in
exchange for or upon transfer of,
an interest in this Book-Entry Remaining Principal Amount Notation
Date Certificate of Book-Entry Certificate Made By
---- ---------------------------------- ------------------------- -------
<S> <C> <C> <C>
</TABLE>
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto
_______________________________________________________________________________.
(please print or typewrite name and address including postal zip code of
assignee) the beneficial ownership interest in the Trust Fund evidenced by the
within Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named assignee
and delivery of such Commercial Mortgage Pass-Through Certificate to the
following address:______________________________________________________.
Dated:
_____________________________________
Signature by or on behalf of Assignor
_____________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise,
in immediately available funds, to _____________ for the account of
______________________.
Distributions made by check (such check to be made payable to ____________)
and all applicable statements and notices should be mailed to ____________.
This information is provided by ___________________, the assignee named
above, or __________________, as its agent.
<PAGE>
Exhibit A-14
Form of Class K Certificate
CLASS K COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 1998-1
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by
NATIONSLINK FUNDING CORPORATION
Pass-Through Rate: Certificate No. K-___
____% per annum
Date of Amended and Restated Certificate Principal Balance of this
Pooling and Servicing Certificate as of the Issue Date:
Agreement: March 1, 1998 $______________
Cut-off Date: March 1, 1998 Class Principal Balance of all the Class K
Certificates as of the Issue Date:
$23,473,819
Issue Date: March 25, 1998
First Distribution Date: Approximate Aggregate unpaid principal balance
April 20, 1998 of the Mortgage Pool as of the Cut-off Date,
after deducting payments of principal due on or
Master Servicer: before such date (the "Initial Pool Balance"):
Midland Loan Services, L.P. $1,020,600,558
Special Servicer: Trustee and REMIC Administrator:
Lennar Partners, Inc. Norwest Bank Minnesota, National Association
Mortgage Loan Seller:
NationsBank, N.A. CUSIP No. 63859C BB 8
<PAGE>
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF 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.]
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN NATIONSLINK
FUNDING CORPORATION, NATIONSBANK, N.A., NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, MIDLAND LOAN SERVICES, L.P., LENNAR PARTNERS, INC. OR ANY OF THEIR
RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER
PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS, IS SUBORDINATE TO
THE ONE OR MORE CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE EXTENT
PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE AGREEMENT REFERRED TO HEREIN.
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.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR INTEREST"
IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE. THIS CERTIFICATE
IS ISSUED ON MARCH 25, 1998, AND BASED ON ITS ISSUE PRICE OF 42.84833%,
INCLUDING ACCRUED INTEREST, AND A STATED REDEMPTION PRICE AT MATURITY EQUAL TO
ITS INITIAL PRINCIPAL BALANCE (PLUS 5 DAYS OF INTEREST AT THE PASS-THROUGH RATE
HEREON), 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 ZERO USED TO PRICE THIS
CERTIFICATE: (I) THE AMOUNT OF OID AS A PERCENTAGE OF THE INITIAL PRINCIPAL
BALANCE OF THIS CERTIFICATE IS APPROXIMATELY 57.22111111%; (II) THE ANNUAL YIELD
TO MATURITY OF THIS CERTIFICATE, COMPOUNDED MONTHLY, IS APPROXIMATELY 16.89%;
AND (III) THE AMOUNT OF OID ALLOCABLE TO THE SHORT FIRST ACCRUAL PERIOD MARCH
25, 1998 TO APRIL 20, 1998 AS A PERCENTAGE OF THE INITIAL PRINCIPAL BALANCE OF
THIS CERTIFICATE, CALCULATED USING THE EXACT METHOD, IS APPROXIMATELY
0.15488983%.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (i) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR A 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 (EACH A "PLAN") OR (ii) A PERSON ACTING ON
BEHALF OF OR USING THE ASSETS OF ANY SUCH PLAN (INCLUDING AN ENTITY WHOSE
UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF INVESTMENT IN THE ENTITY BY
SUCH PLAN AND THE APPLICATION OF DEPARTMENT OF LABOR REGULATION ss. 2510.3-101),
OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER
CIRCUMSTANCES WHEREBY THE PURCHASE AND HOLDING OF SUBORDINATE CERTIFICATES BY
SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE PROHIBITED TRANSACTION
PROVISIONS OF ERISA AND THE CODE UNDER PROHIBITED TRANSACTION CLASS EXEMPTION
95-60 OR (B) IF SUCH CERTIFICATE IS PRESENTED FOR REGISTRATION IN THE NAME OF A
PERSON DESCRIBED IN CLAUSES (I) OR (II) ABOVE, AN OPINION OF COUNSEL IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR TO THE
EFFECT THAT SUCH ACQUISITION AND HOLDING OF SUCH CERTIFICATE BY SUCH PROPOSED
PURCHASER OR TRANSFEREE WILL NOT RESULT IN THE ASSETS OF THE TRUST FUND BEING
DEEMED TO BE "PLAN ASSETS" AND SUBJECT TO THE FIDUCIARY RESPONSIBILITY
PROVISIONS OF ERISA, THE PROHIBITED TRANSACTION PROVISIONS OF THE CODE OR THE
PROVISIONS OF ANY SIMILAR LAW, WILL NOT CONSTITUTE OR RESULT IN A "PROHIBITED
TRANSACTION" WITHIN THE MEANING OF ERISA, SECTION 4975 OF THE CODE OR ANY
SIMILAR LAW, AND WILL NOT SUBJECT THE TRUSTEE, THE CERTIFICATE REGISTRAR, THE
MASTER SERVICER, THE SPECIAL SERVICER, THE PLACEMENT AGENT OR THE DEPOSITOR TO
ANY OBLIGATION OR LIABILITY (INCLUDING OBLIGATIONS OR LIABILITIES UNDER ERISA,
SECTION 4975 OF THE CODE OR ANY SUCH SIMILAR LAW) IN ADDITION TO THOSE SET FORTH
IN THE AGREEMENT. THE TRANSFEREE OF A BENEFICIAL INTEREST IN A CERTIFICATE THAT
IS A BOOK-ENTRY CERTIFICATE SHALL BE DEEMED TO REPRESENT THAT IT IS NOT A PERSON
DESCRIBED IN CLAUSES (I) OR (II) ABOVE.
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
AGREEMENT. A TRANSFEREE IS ALSO REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION
LETTER SUBSTANTIALLY IN THE FORM OF EXHIBIT C TO THE AGREEMENT IF SUCH
TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER OR AN INSTITUTIONAL ACCREDITED
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 certifies that [Cede & Co.] is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the principal
balance of this Certificate (its "Certificate Principal Balance") as of the
Issue Date by the aggregate principal balance of all the Certificates of the
same Class as this Certificate (their "Class Principal Balance") as of the Issue
Date) in that certain beneficial ownership interest in the Trust Fund evidenced
by all the Certificates of the same Class as this Certificate. The Trust Fund
was created and the Certificates were issued pursuant to an Amended and Restated
Pooling and Servicing Agreement, dated as specified above (the "Agreement"),
among NationsLink Funding Corporation, as Depositor, and the Mortgage Loan
Seller, Master Servicer, Special Servicer, Trustee and REMIC Administrator
identified above. To the extent not defined herein, the capitalized terms used
herein have the respective meanings assigned in the Agreement. This Certificate
is issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
20th day of each month or, if such 20th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed pursuant to the Agreement
on the applicable Distribution Date in respect of the Class of Certificates to
which this Certificate belongs. All distributions made under the Agreement in
respect of this Certificate will be made by the Trustee by wire transfer in
immediately available funds to the account of the Person entitled thereto at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate) will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the offices of the Certificate Registrar appointed as provided in the
Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without coupons
in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer or
exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
[For so long as this Certificate is registered in the name of Cede & Co.,
or in such other name as is requested by an authorized representative of DTC,
transfers of interests in this Certificate shall be made through the book-entry
facilities of DTC.]
Prior to due presentment of this Certificate for registration of transfer,
the Depositor, the Mortgage Loan Seller, the, 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 this Certificate is
registered as the owner hereof for all purposes, and none of the Depositor, the
Mortgage Loan Seller, the Master Servicer, the Special Servicer, the Trustee,
the REMIC Administrator, the Certificate Registrar or any such agent shall be
affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall terminate
upon distribution (or provision for distribution) to the Certificateholders of
all amounts held by or on behalf of the Trustee and required to be distributed
to them pursuant to the Agreement following the earlier of (i) 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, and (ii) the purchase by the
Master Servicer or by any Majority Certificateholder of the Controlling Class
(other than the Depositor or the Mortgage Loan Seller) at a price determined as
provided in the Agreement of all Mortgage Loans and any REO Properties remaining
in the Trust Fund. The Agreement permits, but does not require, any such
Majority Certificateholder or the Master Servicer to purchase from the Trust
Fund all Mortgage Loans and any REO Properties remaining therein. The exercise
of such right will effect early retirement of the Certificates; however, such
right to purchase is subject to the aggregate Stated Principal Balance of the
Mortgage Pool at the time of purchase being less than 1% of the Initial Pool
Balance specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Mortgage Loan Seller, the Master Servicer, the Special Servicer,
the Trustee and the REMIC Administrator thereunder and the rights of the
Certificateholders thereunder, at any time by the Depositor, the Mortgage Loan
Seller, the Master Servicer, the Special Servicer, the Trustee and the REMIC
Administrator with the consent of the Holders of Certificates entitled to at
least 51% of the Voting Rights allocated to the affected Classes. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain circumstances,
including any amendment necessary to maintain the status of REMIC I or REMIC II
as a REMIC, without the consent of the Holders of any of the Certificates.
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 Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws of
the State of New York that are applicable to agreements negotiated, made and to
be performed in said State, and the obligations, rights and remedies of the
Holder hereof shall be determined in accordance with such laws.
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Norwest Bank Minnesota, National Association,
as Trustee
By:____________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class K Certificates referred to in the within-mentioned
Agreement.
Dated:
Norwest Bank Minnesota, National Association,
as Certificate Registrar
By:________________________________
Authorized Officer
<PAGE>
<TABLE>
<CAPTION>
SCHEDULE A
Certificate Balance of Definitive
Certificates exchanged or
transferred for, or issued in
exchange for or upon transfer of,
an interest in this Book-Entry Remaining Principal Amount Notation
Date Certificate of Book-Entry Certificate Made By
---- ---------------------------------- ------------------------- -------
<S> <C> <C> <C>
</TABLE>
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto __________________________________________________________________________.
(please print or typewrite name and address including postal zip code of
assignee) the beneficial ownership interest in the Trust Fund evidenced by the
within Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named assignee
and delivery of such Commercial Mortgage Pass-Through Certificate to the
following address:______________________________________________________.
Dated:
_____________________________________
Signature by or on behalf of Assignor
_____________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise,
in immediately available funds, to ____________ for the account of
____________________.
Distributions made by check (such check to be made payable to ____________)
and all applicable statements and notices should be mailed
to___________________________.
This __________________ information is provided by ____________________,
the assignee named above, or ____________________, as its agent.
<PAGE>
Exhibit A-15
Form of Class R-1 Certificate
CLASS R-I COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 1998-1
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by
NATIONSLINK FUNDING CORPORATION
Date of Amended and Restated Certificate No. R-I - __
Pooling and Servicing Agreement:
March 1, 1998
Cut-off Date: March 1, 1998 Percentage Interest evidenced by this
Certificate in the related Class: _____%
Issue Date: March 25, 1998
First Distribution Date: Approximate Aggregate unpaid principal
April 20, 1998 balance of the Mortgage Pool as of the
Cut-off Date, after deducting payments of
principal due on or before such date (the
Master Servicer: "Initial Pool Balance"): $1,020,600,558
Midland Loan Services, L.P.
Special Servicer: Trustee and REMIC Administrator:
Lennar Partners, Inc. Norwest Bank Minnesota, National
Association
Mortgage Loan Seller:
NationsBank, N.A.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN NATIONSLINK
FUNDING CORPORATION, NATIONSBANK, N.A., NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, MIDLAND LOAN SERVICES, L.P., LENNAR PARTNERS, INC. OR ANY OF THEIR
RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER
PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS, IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE AGREEMENT REFERRED TO HEREIN.
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
AGREEMENT. A TRANSFEREE IS ALSO REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION
LETTER SUBSTANTIALLY IN THE FORM OF EXHIBIT C TO THE AGREEMENT IF SUCH
TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER OR AN INSTITUTIONAL ACCREDITED
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 ANY PERSON WHICH IS
AN EMPLOYEE BENEFIT PLAN SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974. AS AMENDED ("ERISA"), OR SECTION 4975 OF THE CODE OR ANY
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 (EACH A "PLAN"), OR ANY PERSON ACTING ON BEHALF
OF OR INVESTING THE ASSETS OF A PLAN.
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 AGREEMENT.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "RESIDUAL INTEREST"
IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE. CONSEQUENTLY, THE
TRANSFER OF THIS CERTIFICATE IS ALSO SUBJECT TO THE ADDITIONAL TAX RELATED
TRANSFER RESTRICTIONS DESCRIBED HEREIN. IF ANY PERSON BECOMES THE REGISTERED
HOLDER OF THIS CERTIFICATE IN VIOLATION OF SUCH TRANSFER RESTRICTIONS, SUCH
REGISTRATION SHALL BE DEEMED TO BE OF NO LEGAL FORCE OR EFFECT WHATSOEVER AND
SUCH PERSON SHALL NOT BE DEEMED TO BE A CERTIFICATEHOLDER FOR ANY PURPOSE
HEREUNDER OR UNDER THE AGREEMENT REFERRED TO HEREIN, INCLUDING, BUT NOT LIMITED
TO, THE RECEIPT OF DISTRIBUTIONS ON THIS CERTIFICATE.
This certifies that _____________________ is the registered owner of the
Percentage Interest evidenced by this Certificate (as specified above) in that
certain beneficial ownership interest in the Trust Fund evidenced by all the
Certificates of the same Class as this Certificate. The Trust Fund was created
and the Certificates were issued pursuant to an Amended and Restated Pooling and
Servicing Agreement, dated as specified above (the "Agreement"), among
NationsLink Funding Corporation, as Depositor, and the Mortgage Loan Seller,
Master Servicer, Special Servicer, Trustee and REMIC Administrator identified
above. To the extent not defined herein, the capitalized terms used herein have
the respective meanings assigned in the Agreement. This Certificate is issued
under and is subject to the terms, provisions and conditions of the Agreement,
to which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
20th day of each month or, if such 20th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"), commencing upon the
first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed pursuant to the
Agreement on the applicable Distribution Date in respect of the Class of
Certificates to which this Certificate belongs. All distributions made under the
Agreement in respect of this Certificate will be made by the Trustee by wire
transfer in immediately available funds to the account of the Person entitled
thereto at a bank or other entity having appropriate facilities therefor, if
such Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of the Person entitled thereto, as such name and address
appear in the Certificate Register. Notwithstanding the above, the final
distribution in respect of this Certificate will be made after due notice by the
Trustee of the pendency of such distribution and only upon presentation and
surrender of this Certificate at the offices of the Certificate Registrar
appointed as provided in the Agreement or such other location as may be
specified in such notice.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, Distribution Account and,
if established, the REO Account may be made from time to time for purposes other
than, and, in certain cases, prior to, distributions to Certificateholders, such
purposes including the reimbursement of advances made, or certain expenses
incurred, with respect to the Mortgage Loans and the payment of interest on such
advances and expenses.
The Certificates are issuable in fully registered form only without coupons
in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
Each Person who has or who acquires any Ownership Interest in this
Certificate shall be deemed by the acceptance or acquisition of such Ownership
Interest to have agreed to be bound by the provisions of Section 5.02(d) of the
Agreement and, if any purported Transferee shall become a Holder of this
Certificate in violation of the provisions of such Section 5.02(d), to have
irrevocably authorized the Trustee under clause (ii)(A) of such Section 5.02(d)
to deliver payments to a Person other than such Person and to have irrevocably
authorized the Trustee under clause (ii)(B) of such Section 5.02(d) to negotiate
the terms of any mandatory disposition and to execute all instruments of
transfer and to do all other things necessary in connection with any such
disposition. Each Person holding or acquiring any Ownership Interest in this
Certificate must be a Permitted Transferee and shall promptly notify the Master
Servicer, the Trustee and the REMIC Administrator of any change or impending
change in its status as a Permitted Transferee. In connection with any proposed
transfer of any Ownership Interest in this Certificate, the Certificate
Registrar shall require delivery to it, and shall not register the transfer of
this Certificate until its receipt of, an affidavit and agreement substantially
in the form attached as Exhibit C-1 to the Agreement (a "Transfer Affidavit and
Agreement") from the proposed Transferee, in form and substance satisfactory to
the Certificate Registrar, representing and warranting, among other things, that
such Transferee is a Permitted Transferee, that it is not acquiring its
Ownership Interest in this Certificate as a nominee, trustee or agent for any
Person that is not a Permitted Transferee, that for so long as it retains its
Ownership Interest in this Certificate, it will endeavor to remain a Permitted
Transferee, and that it has reviewed the provisions of Section 5.02(d) of the
Agreement and agrees to be bound by them. Notwithstanding the delivery of a
Transfer Affidavit and Agreement by a proposed Transferee, if the Certificate
Registrar has actual knowledge that the proposed Transferee is not a Permitted
Transferee, the Certificate Registrar shall not register the Transfer of an
Ownership Interest in this Certificate to such proposed Transferee.
Each Person holding or acquiring any Ownership Interest in this Certificate
shall agree (x) to require a Transfer Affidavit and Agreement from any other
Person to whom such Person attempts to transfer its Ownership Interest herein
and (y) not to transfer its Ownership Interest herein unless it provides to the
Certificate Registrar a certificate substantially in the form attached as
Exhibit C-2 to the Agreement stating that, among other things, it has no actual
knowledge that such other Person is not a Permitted Transferee.
A "Permitted Transferee" is any Transferee that is not a Disqualified
Organization or a Non-United States Person.
A "Disqualified Organization" is (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 the Federal Home Loan Mortgage Corporation, a majority of whose 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 (unless such organization is subject to the tax imposed by
Section 511 of the Code on unrelated business taxable income), (iv) rural
electric and telephone cooperatives described in Section 1381 of the Code 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 the Trust Fund or any Person having an
Ownership Interest in any Class of Certificates (other than such Person) to
incur a liability for any federal tax imposed under the Code that would not
otherwise be imposed but for the Transfer of an Ownership Interest in a Residual
Certificate to such Person. The terms "United States", "State" and
"international organization" shall have the meanings set forth in Section 7701
of the Code or successor provisions.
A "Non-United States Person" is any Person other than a United States
Person. A "United States Person" is 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, an estate whose
income is subject to United States federal income tax regardless of its source,
or a trust if a court within the United States is able to exercise primary
supervision over the administration of the trust and one or more United States
persons have the authority to control all substantial decisions of the trust,
all within the meaning of Section 7701(a)(30) of the Code.
No service charge will be imposed for any registration of transfer or
exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
Prior to due presentment of this Certificate for registration of transfer,
the Depositor, the Mortgage Loan Seller, 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 this Certificate is
registered as the owner hereof for all purposes, and none of the Depositor, the
Mortgage Loan Seller, the Master Servicer, the Special Servicer, the Trustee,
the REMIC Administrator, the Certificate Registrar or any such agent shall be
affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall terminate
upon distribution (or provision for distribution) to the Certificateholders of
all amounts held by or on behalf of the Trustee and required to be distributed
to them pursuant to the Agreement following the earlier of (i) 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, and (ii) the purchase by the
Master Servicer or by any Majority Certificateholder of the Controlling Class
(other than the Depositor or the Mortgage Loan Seller) at a price determined as
provided in the Agreement of all Mortgage Loans and any REO Properties remaining
in the Trust Fund. The Agreement permits, but does not require, any such
Majority Certificateholder or the Master Servicer to purchase from the Trust
Fund all Mortgage Loans and any REO Properties remaining therein. The exercise
of such right will effect early retirement of the Certificates; however, such
right to purchase is subject to the aggregate Stated Principal Balance of the
Mortgage Pool at the time of purchase being less than 1% of the Initial Pool
Balance specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Mortgage Loan Seller, the Master Servicer, the Special Servicer,
the Trustee and the REMIC Administrator thereunder and the rights of the
Certificateholders thereunder, at any time by the Depositor, the Mortgage Loan
Seller, the Master Servicer, the Special Servicer, the Trustee and the REMIC
Administrator with the consent of the Holders of Certificates entitled to at
least 51% of the Voting Rights allocated to the affected Classes. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain circumstances,
including any amendment necessary to maintain the status of REMIC I or REMIC II
as a REMIC, without the consent of the Holders of any of the Certificates.
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 Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws of
the State of New York that are applicable to agreements negotiated, made and to
be performed in said State, and the obligations, rights and remedies of the
Holder hereof shall be determined in accordance with such laws.
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Norwest Bank Minnesota, National Association,
as Trustee
By:_________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class R-I Certificates referred to in the
within-mentioned Agreement.
Dated:
Norwest Bank Minnesota, National Association,
as Certificate Registrar
By:__________________________________
Authorized Officer
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto _____________________________________________________________. (please
print or typewrite name and address including postal zip code of assignee) the
beneficial ownership interest in the Trust Fund evidenced by the within
Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named assignee
and delivery of such Commercial Mortgage Pass-Through Certificate to the
following address:______________________________________________________.
Dated:
_____________________________________
Signature by or on behalf of Assignor
_____________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise,
in immediately available funds, to _______________ for the account of
____________________.
Distributions made by check (such check to be made payable
to________________) and all applicable statements and notices should be mailed
to_______________________________________________________________.
This information is provided by ______________, the assignee named above, or
______________________________, as its agent.
<PAGE>
Exhibit A-16
Form of Class R-II Certificate
CLASS R-II COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 1998-1
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by
NATIONSLINK FUNDING CORPORATION
Date of Amended and Restated Certificate No. R-II - __
Pooling and Servicing Agreement:
March 1, 1998
Cut-off Date: March 1, 1998 Percentage Interest evidenced by this
Certificate in the related Class: _____%
Issue Date: March 25, 1998
First Distribution Date: Approximate Aggregate unpaid principal
April 20, 1998 balance of the Mortgage Pool as of the
Cut-off Date, after deducting payments of
principal due on or before such date (the
Master Servicer: "Initial Pool Balance"): $1,020,600,558
Midland Loan Services, L.P.
Special Servicer: Trustee and REMIC Administrator:
Lennar Partners, Inc. Norwest Bank Minnesota, National
Association
Mortgage Loan Seller:
NationsBank, N.A.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN NATIONSLINK
FUNDING CORPORATION, NATIONSBANK, N.A., NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, MIDLAND LOAN SERVICES, L.P., LENNAR PARTNERS, INC. OR ANY OF THEIR
RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER
PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS, IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE AGREEMENT REFERRED TO HEREIN.
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
AGREEMENT. A TRANSFEREE IS ALSO REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION
LETTER SUBSTANTIALLY IN THE FORM OF EXHIBIT C TO THE AGREEMENT IF SUCH
TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER OR AN INSTITUTIONAL ACCREDITED
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 ANY PERSON WHICH IS
AN EMPLOYEE BENEFIT PLAN SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974. AS AMENDED ("ERISA"), OR SECTION 4975 OF THE CODE OR ANY
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 (EACH A "PLAN"), OR ANY PERSON ACTING ON BEHALF
OF OR INVESTING THE ASSETS OF A PLAN.
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 AGREEMENT.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "RESIDUAL INTEREST"
IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE. CONSEQUENTLY, THE
TRANSFER OF THIS CERTIFICATE IS ALSO SUBJECT TO THE ADDITIONAL TAX RELATED
TRANSFER RESTRICTIONS DESCRIBED HEREIN. IF ANY PERSON BECOMES THE REGISTERED
HOLDER OF THIS CERTIFICATE IN VIOLATION OF SUCH TRANSFER RESTRICTIONS, SUCH
REGISTRATION SHALL BE DEEMED TO BE OF NO LEGAL FORCE OR EFFECT WHATSOEVER AND
SUCH PERSON SHALL NOT BE DEEMED TO BE A CERTIFICATEHOLDER FOR ANY PURPOSE
HEREUNDER OR UNDER THE AGREEMENT REFERRED TO HEREIN, INCLUDING, BUT NOT LIMITED
TO, THE RECEIPT OF DISTRIBUTIONS ON THIS CERTIFICATE.
This certifies that _____________________ is the registered owner of the
Percentage Interest evidenced by this Certificate (as specified above) in that
certain beneficial ownership interest in the Trust Fund evidenced by all the
Certificates of the same Class as this Certificate. The Trust Fund was created
and the Certificates were issued pursuant to an Amended and Restated Pooling and
Servicing Agreement, dated as specified above (the "Agreement"), among
NationsLink Funding Corporation, as Depositor, and the Mortgage Loan Seller,
Master Servicer, Special Servicer, Trustee and REMIC Administrator identified
above. To the extent not defined herein, the capitalized terms used herein have
the respective meanings assigned in the Agreement. This Certificate is issued
under and is subject to the terms, provisions and conditions of the Agreement,
to which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
20th day of each month or, if such 20th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"), commencing upon the
first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed pursuant to the
Agreement on the applicable Distribution Date in respect of the Class of
Certificates to which this Certificate belongs. All distributions made under the
Agreement in respect of this Certificate will be made by the Trustee by wire
transfer in immediately available funds to the account of the Person entitled
thereto at a bank or other entity having appropriate facilities therefor, if
such Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of the Person entitled thereto, as such name and address
appear in the Certificate Register. Notwithstanding the above, the final
distribution in respect of this Certificate will be made after due notice by the
Trustee of the pendency of such distribution and only upon presentation and
surrender of this Certificate at the offices of the Certificate Registrar
appointed as provided in the Agreement or such other location as may be
specified in such notice.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, Distribution Account and,
if established, the REO Account may be made from time to time for purposes other
than, and, in certain cases, prior to, distributions to Certificateholders, such
purposes including the reimbursement of advances made, or certain expenses
incurred, with respect to the Mortgage Loans and the payment of interest on such
advances and expenses.
The Certificates are issuable in fully registered form only without coupons
in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
Each Person who has or who acquires any Ownership Interest in this
Certificate shall be deemed by the acceptance or acquisition of such Ownership
Interest to have agreed to be bound by the provisions of Section 5.02(d) of the
Agreement and, if any purported Transferee shall become a Holder of this
Certificate in violation of the provisions of such Section 5.02(d), to have
irrevocably authorized the Trustee under clause (ii)(A) of such Section 5.02(d)
to deliver payments to a Person other than such Person and to have irrevocably
authorized the Trustee under clause (ii)(B) of such Section 5.02(d) to negotiate
the terms of any mandatory disposition and to execute all instruments of
transfer and to do all other things necessary in connection with any such
disposition. Each Person holding or acquiring any Ownership Interest in this
Certificate must be a Permitted Transferee and shall promptly notify the Master
Servicer, the Trustee and the REMIC Administrator of any change or impending
change in its status as a Permitted Transferee. In connection with any proposed
transfer of any Ownership Interest in this Certificate, the Certificate
Registrar shall require delivery to it, and shall not register the transfer of
this Certificate until its receipt of, an affidavit and agreement substantially
in the form attached as Exhibit C-1 to the Agreement (a "Transfer Affidavit and
Agreement") from the proposed Transferee, in form and substance satisfactory to
the Certificate Registrar, representing and warranting, among other things, that
such Transferee is a Permitted Transferee, that it is not acquiring its
Ownership Interest in this Certificate as a nominee, trustee or agent for any
Person that is not a Permitted Transferee, that for so long as it retains its
Ownership Interest in this Certificate, it will endeavor to remain a Permitted
Transferee, and that it has reviewed the provisions of Section 5.02(d) of the
Agreement and agrees to be bound by them. Notwithstanding the delivery of a
Transfer Affidavit and Agreement by a proposed Transferee, if the Certificate
Registrar has actual knowledge that the proposed Transferee is not a Permitted
Transferee, the Certificate Registrar shall not register the Transfer of an
Ownership Interest in this Certificate to such proposed Transferee.
Each Person holding or acquiring any Ownership Interest in this Certificate
shall agree (x) to require a Transfer Affidavit and Agreement from any other
Person to whom such Person attempts to transfer its Ownership Interest herein
and (y) not to transfer its Ownership Interest herein unless it provides to the
Certificate Registrar a certificate substantially in the form attached as
Exhibit C-2 to the Agreement stating that, among other things, it has no actual
knowledge that such other Person is not a Permitted Transferee.
A "Permitted Transferee" is any Transferee that is not a Disqualified
Organization or a Non-United States Person.
A "Disqualified Organization" is (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 the Federal Home Loan Mortgage Corporation, a majority of whose 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 (unless such organization is subject to the tax imposed by
Section 511 of the Code on unrelated business taxable income), (iv) rural
electric and telephone cooperatives described in Section 1381 of the Code 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 the Trust Fund or any Person having an
Ownership Interest in any Class of Certificates (other than such Person) to
incur a liability for any federal tax imposed under the Code that would not
otherwise be imposed but for the Transfer of an Ownership Interest in a Residual
Certificate to such Person. The terms "United States", "State" and
"international organization" shall have the meanings set forth in Section 7701
of the Code or successor provisions.
A "Non-United States Person" is any Person other than a United States
Person. A "United States Person" is a citizen or resident of the United States,
a corporation, partnership or other entity created or organized in, or under the
laws of, the United States or any political subdivision thereof, or an estate
whose income is subject to United States federal income tax regardless of its
source, or a trust if a court within the United States is able to exercise
primary supervision over the administration of the trust and one or more United
States persons have the authority to control all substantial decisions of the
trust, all within the meaning of Section 7701(a)(30) of the Code.
No service charge will be imposed for any registration of transfer or
exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
Prior to due presentment of this Certificate for registration of transfer,
the Depositor, the Mortgage Loan Seller, 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 this Certificate is
registered as the owner hereof for all purposes, and none of the Depositor, the
Mortgage Loan Seller, the Master Servicer, the Special Servicer, the Trustee,
the REMIC Administrator, the Certificate Registrar or any such agent shall be
affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall terminate
upon distribution (or provision for distribution) to the Certificateholders of
all amounts held by or on behalf of the Trustee and required to be distributed
to them pursuant to the Agreement following the earlier of (i) 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, and (ii) the purchase by the
Master Servicer or by any Majority Certificateholder of the Controlling Class
(other than the Depositor or the Mortgage Loan Seller) at a price determined as
provided in the Agreement of all Mortgage Loans and any REO Properties remaining
in the Trust Fund. The Agreement permits, but does not require, any such
Majority Certificateholder or the Master Servicer to purchase from the Trust
Fund all Mortgage Loans and any REO Properties remaining therein. The exercise
of such right will effect early retirement of the Certificates; however, such
right to purchase is subject to the aggregate Stated Principal Balance of the
Mortgage Pool at the time of purchase being less than 1% of the Initial Pool
Balance specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Mortgage Loan Seller, the Master Servicer, the Special Servicer,
the Trustee and the REMIC Administrator thereunder and the rights of the
Certificateholders thereunder, at any time by the Depositor, the Mortgage Loan
Seller, the Master Servicer, the Special Servicer, the Trustee and the REMIC
Administrator with the consent of the Holders of Certificates entitled to at
least 51% of the Voting Rights allocated to the affected Classes. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain circumstances,
including any amendment necessary to maintain the status of REMIC I or REMIC II
as a REMIC, without the consent of the Holders of any of the Certificates.
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 Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws of
the State of New York that are applicable to agreements negotiated, made and to
be performed in said State, and the obligations, rights and remedies of the
Holder hereof shall be determined in accordance with such laws.
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Norwest Bank Minnesota, National Association,
as Trustee
By:_______________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class R-II Certificates referred to in the
within-mentioned Agreement.
Dated:
Norwest Bank Minnesota, National Association,
as Certificate Registrar
By:_______________________________
Authorized Officer
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto ______________________________________________________________. (please
print or typewrite name and address including postal zip code of assignee) the
beneficial ownership interest in the Trust Fund evidenced by the within
Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named assignee
and delivery of such Commercial Mortgage Pass-Through Certificate to the
following address:______________________________________________________.
Dated:
_____________________________________
Signature by or on behalf of Assignor
_____________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise,
in immediately available funds, to ________________ for the account of
___________________.
Distributions made by check (such check to be made payable to
______________________) and all applicable statements and notices should be
mailed to______________________________.
This information is provided by_____________________, the assignee named
above, or ______________, as its agent.
<PAGE>
EXHIBIT B
FORM OF INVESTMENT REPRESENTATION LETTER
Norwest Bank Minnesota, National Association,
Norwest Center, Sixth and Marquette
Minneapolis, Minnesota 55479-0113
NationsLink Funding Corporation
NationsBank Corporate Center
100 North Tryon Street
Charlotte, North Carolina 28255
Re: Transfer of NationsLink Funding Corporation, Commercial
Mortgage Pass-Through Certificates, Series 1998-1
Ladies and Gentlemen:
This letter is delivered pursuant to Section 5.02 of the Pooling and
Servicing Agreement dated as of March 1, 1998 (the "Pooling and Servicing
Agreement"), by and among NationsLink Funding Corporation, as Depositor,
NationsBank, N.A., as Mortgage Loan Seller, Midland Loan Services, L.P., as
Master Servicer, Lennar Partners, Inc., as Special Servicer, and Norwest Bank,
National Association, as Trustee on behalf of the holders of NationsLink Funding
Corporation, Commercial Mortgage Pass-Through Certificates, Series 1998-1 (the
"Certificates"), in connection with the transfer by _________________ (the
"Seller") to the undersigned (the "Purchaser") of $_______________ aggregate
Certificate Balance 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.
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,
_______________________
* Purchaser must include one of the following two certifications.
<PAGE>
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
anycosts 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.
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 (except to the
extent provided in applicable Treasury regulations) or other entity created or
organized in or under the laws of the United States or any of its political
subdivisions, an estate the income of which is subject to U.S. federal income
taxation regardless of its source or a trust if a court within the United States
is able to exercise primary supervision over the administration of such trust,
and one or more United States fiduciaries have the authority to control all
substantial decisions of such trust (or, to the extent provided in applicable
Treasury regulations, certain trusts in existence on August 20, 1996 which were
eligible to elect to be treated as U.S.persons).
__________________________
* Each Purchaser must include one of the two alternatives certifications.
<PAGE>
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 therefor:
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 C-1
FORM OF TRANSFER AFFIDAVIT AND AGREEMENT
PURSUANT TO SECTION 5.02(d)(i)(B)
STATE OF )
) participation.:
COUNTY OF )
[NAME OF OFFICER], being first duly sworn, deposes and says that:
1. He/She is the [Title of Officer] of [Name of Prospective Transferee]
(the prospective transferee (the "Transferee") of a NationsLink Funding
Corporation Class, R-[I] [II] Commercial Mortgage Pass-Through Certificate,
Series 1998-1, evidencing a ____% Percentage Interest in the Class to which it
belongs (the "Residual Certificate")), a __________________________________ duly
organized and validly existing under the laws of [the State of ____] [the United
States], on behalf of which he/she makes this affidavit. Capitalized terms used
but not defined herein have the respective meanings assigned thereto in the
Amended and Restated Pooling and Servicing Agreement pursuant to which the
Residual Certificate was issued (the "Pooling and Servicing Agreement").
2. The Transferee (i) is [and, as of [date of transfer], will be] a
"Permitted Transferee" and will endeavor to remain a "Permitted Transferee" for
so long as it holds the Residual Certificate, and (ii) is acquiring the Residual
Certificate for its own account or for the account of another prospective
transferee from which it has received an affidavit in substantially the same
form as this affidavit. A "Permitted Transferee" is any person other than a
"disqualified organization" or a "non-United States person". (For this purpose:
(i) a "disqualified organization" means the United States or a possession
thereof, any state or political subdivision thereof, any agency or
instrumentality of any of the foregoing (other than an instrumentality, all of
the activities of which are subject to tax and, except for the Federal Home Loan
Mortgage Corporation, a majority of whose board of directors is not selected by
any such governmental entity) or any foreign government, international
organization or any agency or instrumentality of such foreign government or
organization, any rural electric or telephone cooperative, or any organization
(other than certain farmers' cooperatives) that is generally exempt from federal
income tax (unless such organization is subject to the tax on unrelated business
taxable income); and (ii) a "non-United States person" is any person other than
a "United States person". A "United States person" is a citizen or resident of
the United States, a corporation, partnership or other entity created or
organized in, or under the laws of, the United States or any political
subdivision thereof, or an estate whose income is subject to United States
federal income tax regardless of its source, or a trust if a court within the
United States is able to exercise primary supervision over the administration of
the trust and one or more United States persons have the authority to control
all substantial decisions of the trust, all within the meaning of Section
7701(a)(30) of the Code.)
3. The Transferee is aware (i) of the tax that would be imposed on
transfers of the Residual Certificate to "disqualified organizations" under the
Internal Revenue Code of 1986, as amended; (ii) that such tax would be imposed
on the transferor, or, if such transfer is through an agent (which person
includes a broker, nominee or middleman) for a "disqualified organization", on
the agent; (iii) that the person otherwise liable for the tax shall be relieved
of liability for the tax if the transferee furnishes to such person an affidavit
that the transferee is not a "disqualified organization" and, at the time of
transfer, such person does not have actual knowledge that the affidavit is
false; and (iv) that the Residual Certificate may be a "non-economic residual
interest" within the meaning of Treasury Regulation ss.1.860E-1(c) and that the
transferor of a "non-economic residual interest" will remain liable for any
taxes due with respect to the income on such residual interest, unless no
significant purpose of the transfer is to enable the transferor to impede the
assessment or collection of tax.
4. The Transferee is aware of the tax imposed on a "pass-through entity"
holding the Residual Certificate if at any time during the taxable year of the
pass-through entity a "disqualified organization" is the record holder of an
interest in such entity. (For this purpose, a "pass- through entity" includes a
regulated investment company, a real estate investment trust or common trust
fund, a partnership, trust or estate, and certain cooperatives.)
5. The Transferee is aware that the Certificate Registrar will not register
any transfer of the Residual Certificate by the Transferee unless the
Transferee's transferee, or such transferee's agent, delivers to the Certificate
Registrar, among other things, an affidavit and agreement in substantially the
same form as this affidavit and agreement. The Transferee expressly agrees that
it will not consummate any such transfer if it knows or believes that any
representation contained in such affidavit and agreement is false.
6. The Transferee consents to any additional restrictions or arrangements
that shall be deemed necessary upon advice of counsel to constitute a reasonable
arrangement to ensure that the Residual Certificate will only be owned, directly
or indirectly, by a Permitted Transferee.
7. The Transferee's taxpayer identification number is ______________.
8. The Transferee has reviewed the provisions of Section 5.02(d) of the
Pooling and Servicing Agreement, a description of which provisions is set forth
in the Residual Certificate (in particular, clause (ii) of Section 5.02(d) which
authorizes the Trustee to deliver payments on the Residual Certificate to a
person other than the Transferee, in the event that the Transferee holds such
Residual Certificate in violation of Section 5.02(d)), and the Transferee
expressly agrees to be bound by and to comply with such provisions.
9. No purpose of the Transferee relating to its purchase or any sale of the
Residual Certificate is or will be to impede the assessment or collection of any
tax.
10. The Transferee hereby represents to and for the benefit of the
transferor that the Transferee intends to pay any taxes associated with holding
the Residual Certificate as they become due, fully understanding that it may
incur tax liabilities in excess of any cash flows generated by the Residual
Certificate.
11. The Transferee will, in connection with any transfer that it makes of
the Residual Certificate, deliver to the Certificate Registrar a representation
letter substantially in the form of Exhibit C-2 to the Pooling and Servicing
Agreement in which it will represent and warrant, among other things, that it is
not transferring the Residual Certificate to impede the assessment or collection
of any tax and that it has at the time of such transfer conducted a reasonable
investigation of the financial condition of the proposed transferee as
contemplated by Treasury Regulations Section 1.860E-1(c)(4)(i) and has satisfied
the requirements of such provision.
<PAGE>
IN WITNESS WHEREOF, the Transferee has caused this instrument to be
executed on its behalf, pursuant to the authority of its Board of Directors, by
its [Title of Officer] and its corporate seal to be hereunto attached, attested
by its [Assistant] Secretary, this ___ day of __________, 199__.
[NAME OF TRANSFEREE]
By:_________________________
[Name of Officer]
[Title of Officer]
[Corporate Seal]
ATTEST:
_____________________________
[Assistant] Secretary
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 ______________, 199__.
_____________________________
NOTARY PUBLIC
COUNTY OF ___________
STATE OF _____________
My Commission expires the _________ day of _____________, 19__.
<PAGE>
EXHIBIT C-2
FORM OF TRANSFEROR CERTIFICATE
PURSUANT TO SECTION 5.02(d)(i)(D)
__________________, 19___
Norwest Bank Minnesota, National Association
Norwest Center, Sixth and Marquette
Minneapolis, Minnesota 55479-0113
Attention: Corporate Trust Services (CMBS)
Re: NationsLink Funding Corporation,
Commercial Mortgage Pass-Through
Certificates, Series 1998-1, Class R-[I]
[II], evidencing a __% percentage interest
in the Class to which it belongs
Dear Sirs:
This letter is delivered to you in connection with the transfer by
_____________ (the "Transferor") to ____________________ (the "Transferee") of
the captioned Class R-[I] [II] Certificate (the "Residual Certificate"),
pursuant to Section 5.02 of the Amended and Restated Pooling and Servicing
Agreement (the "Pooling and Servicing Agreement"), dated as of March 1, 1998,
among NationsLink Funding Corporation, as Depositor, NationsBank, N.A., as
Mortgage Loan Seller, Midland Loan Services, L.P., as Master Servicer, Lennar
Partners, Inc., as Special Servicer, and Norwest Bank Minnesota, National
Association, as Trustee and REMIC Administrator. All terms used herein and not
otherwise defined shall have the respective meanings set forth in the Pooling
and Servicing Agreement. The Transferor hereby represents and warrants to you,
as Certificate Registrar, that:
1. No purpose of the Transferor relating to the transfer of the Residual
Certificate by the Transferor to the Transferee is or will be to impede the
assessment or collection of any tax.
2. The Transferor understands that the Transferee has delivered to you a
Transfer Affidavit and Agreement in the form attached to the Pooling and
Servicing Agreement as Exhibit C-1. The Transferor does not know or believe that
any representation contained therein is false.
3. The Transferor has at the time of this transfer conducted a reasonable
investigation of the financial condition of the Transferee as contemplated by
Treasury Regulations Section 1.860E-1(c)(4)(i) and, as a result of that
investigation, the Transferor has determined that the Transferee has
historically paid its debts as they became due and has found no significant
evidence to indicate that the Transferee will not continue to pay its debts as
they become due in the future. The Transferor understands that the transfer of
the Residual Certificate may not be respected for United States federal income
tax purposes (and the Transferor may continue to be liable for United States
federal income taxes associated therewith) unless the Transferor has conducted
such an investigation.
Very truly yours,
_________________________________
(Transferor)
By:______________________________
Name:
Title:
<PAGE>
EXHIBIT D
REQUEST FOR RELEASE
___________________, 19___
Norwest Bank Minnesota, National Association
3 New York Plaza
New York, New York 10004
Attention: Corporate Trust Services (CMBS)
In connection with the administration of the Mortgage Files held by or on
behalf of you as Trustee under that certain Amended and Restated Pooling and
Servicing Agreement dated as of March 1, 1998 (the "Pooling and Servicing
Agreement"), by and among NationsLink Funding Corporation, as Depositor,
NationsBank, N.A., as Mortgage Loan Seller, Midland Loan Services, L.P., as
Master Servicer, Lennar Partners, Inc., as Special Servicer, and you, as Trustee
and REMIC Administrator, 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
undersigned hereby certifies that all
amounts received in connection with the
Mortgage Loan that are required to be
credited to the Certificate Account pursuant
to the Pooling and Servicing Agreement, have
been or will be so credited.
______ 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.
LENNAR PARTNERS, INC.
By:______________________________
Name:_________________________
Title:________________________
<PAGE>
EXHIBIT E
FORM OF REO STATUS REPORT
Prospectus Property Sq Ft or
ID Type City State Units
- ------------ ------- ----- ------ --------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
Scheduled Total P&I Total Other
Paid Thru Loan Advances Expenses Advances
Date Balance to Date to Date T&I
--------- -------- ----------- ----------- ---------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
Current
Total Monthly Maturity LTM LTM
Exposure P&I Date NOI Date NOI/O&C
- ------------- --------- -------- -------- --------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
Appraisal Loss
BOP or Using REO
Valuation Internal 92% Estimated Acq
Date Val. Value Recovery Date Comments
- ----------- ----------- -------- ---------- -------- ----------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
EXHIBIT F
FORM OF ERISA REPRESENTATION LETTER
Norwest Bank Minnesota, National Association
Norwest Center, Sixth and Marquette
Minneapolis, Minnesota 55479-0113
Attention:
NationsLink Funding Corporation
100 North Tryon Street
Charlotte, North Carolina 28255
Attention:
Re: Transfer of NationsLink Funding Corporation,
Commercial Mortgage Pass-Through Certificates,
Series 1998-1
Ladies and Gentlemen:
The undersigned (the "Purchaser") proposes to purchase $____________
initial Certificate Balance of NationsLink Funding Corporation, Commercial
Mortgage Pass-Through Certificates, Series 1998-1, Class __ (the "Certificate")
issued pursuant to that certain Amended and Restated Pooling and Servicing
Agreement, dated as of March 1, 1998 (the "Pooling and Servicing Agreement"), by
and among NationsLink Funding Corporation, as depositor (the "Depositor"),
NationsBank, N.A., as mortgage loan seller, Midland Loan Services, L.P., as
servicer (the "Servicer"), Lennar Partners, Inc., as special servicer (the
"Special Servicer") and Norwest Bank Minnesota, National Association, 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) an employee benefit plan subject to the
fiduciary responsibility provisions of the Employee Retirement Income Security
Act of 1974, as amended ("ERISA") or Section 4975 of the Internal Revenue Code
of 1986, as amended (the "Code"), or a 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 (each a "Plan") or (b) a person acting on behalf of or using the assets of
any such Plan (including an entity whose underlying assets include Plan assets
by reason of investment in the entity by any such Plan and the application of
Department of Labor Regulation ss. 2510.3-101), other than an insurance company
using the assets of its general account under circumstances whereby the purchase
and holding of Offered Private Certificates by such insurance company would be
exempt from the prohibited transaction provisions of ERISA and the Code under
Prohibited Transaction Class Exemption 95-60.
2. The Purchaser understands that if the Purchaser is a Person referred to
in 1(a) or (b) above, such Purchaser is required to provide to the Certificate
Registrar an opinion of counsel in form and substance satisfactory to the
Certificate Registrar and the Depositor to the effect that the acquisition and
holding of such Certificate by such purchaser or transferee will not result in
the assets of the Trust Fund being deemed to be "plan assets" and subject to the
fiduciary responsibility provisions of ERISA, the prohibited transaction
provisions of the Code or the provisions of any Similar Law (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
ERISA, Section 4975 of the Code or any Similar Law, and will not subject the
Trustee, the Certificate Registrar, the Servicer, the Special Servicer, the
Placement Agents or the Depositor to any obligation or liability (including
obligations or liabilities under ERISA, Section 4975 of the Code or any such
Similar Law) in addition to those set forth in the Pooling and Servicing
Agreement, which Opinion of Counsel shall not be at the expense of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the
Underwriter, the Placement Agent, the Certificate Registrar or the Trust Fund.
<PAGE>
IN WITNESS WHEREOF, the Purchaser hereby executes this ERISA Representation
Letter on the ___th day of _____, ____.
Very truly yours,
______________________________
[The Purchaser]
By:_________________________________
Name:
Title:
<PAGE>
Schedule I
Mortgage Loan Schedule
<TABLE>
<CAPTION>
Cut-off
Loan Zip Property Original Date
Number Property Name City State Code Type Balance Balance
------ -- -------------- ----------- -------- ---- ---- ------- -------
<S> <C> <C> <C> <C> <C> <C> <C>
50165 La Terraza Apartments San Diego CA 92127 Multifamily $28,000,000 $27,916,467
50530 University Towers Raleigh NC 27607 Multifamily $26,500,000 $26,500,000
50230 Playa Pacifica Apartments Hermosa Beach CA 90254 Multifamily $18,800,000 $18,739,697
50362 Trinity Towers San Francisco CA 94109 Multifamily $18,750,000 $18,714,507
50368 Le Club Apartments Miami Lakes FL 33015 Multifamily $18,200,000 $18,145,866
50204 La Palma Apartments Phoenix AZ 85022 Multifamily $17,880,000 $17,806,279
50005 Somerset Pointe Apartments Las Vegas NV 89103 Multifamily $17,167,000 $17,030,538
50453 Buckingham Station Apts Denver CO 80231 Multifamily $17,000,000 $16,969,439
50446 TownPark Crossing Apartments Kennesaw GA 30144 Multifamily $13,700,000 $13,663,260
50363 Montgomery Park Apartments Albuquerque NM 87109 Multifamily $7,700,000 $7,672,939
50299 Brandywood Park Apartments Albuquerque NM 87108 Multifamily $3,880,000 $3,871,078
50305 Briarwood Park Apts. Albuquerque NM 87109 Multifamily $1,675,000 $1,671,148
50333 Arch View Apartments Studio City CA 91604 Multifamily $9,840,000 $9,816,032
50417 Riverwood Apartments Reno NV 89502 Multifamily $9,300,000 $9,283,362
50048 Hidden Brooks Apartments San Jose CA 95116 Multifamily $8,355,000 $8,314,023
50555 Loch Raven Apartments Baltimore MD 21239 Multifamily $8,225,000 $8,212,059
50020 Idlewild Apartments Charlotte NC 28212 Multifamily $7,393,850 $7,338,803
50054 Vista Springs Apartments Moreno Valley CA 92557 Multifamily $6,783,000 $6,753,469
50056 Crystal Lakes Apartments Miami FL 33169 Multifamily $6,750,000 $6,717,102
50606 The Landings at Bivens Arm
Apartments Gainesville FL 32608 Multifamily $6,710,200 $6,702,025
50264 Gables at Mountain Park Lake Oswego OR 97035 Multifamily $6,650,000 $6,630,062
50494 Biscayne Apartments College Park GA 30349 Multifamily $6,400,000 $6,400,000
50338 Bluebonnet Place Baton Rouge LA 70810 Multifamily $5,920,000 $5,902,444
50420 Maison Bocage Apartments Baton Rouge LA 70809 Multifamily $5,850,000 $5,839,609
50546 Heatherton Estates Apartments Unincorporated
St. Louis MO 63033 Multifamily $5,700,000 $5,693,147
50416 Sierra Village Apartments North Highlands CA 95660 Multifamily $5,300,000 $5,287,468
50452 Alder Ridge Apartments Davis CA 95616 Multifamily $5,265,000 $5,255,090
50451 Sutter Ridge Apartments Rocklin CA 95677 Multifamily $5,265,000 $5,255,090
50337 Cimarron Place Garland TX 75043 Multifamily $5,240,000 $5,224,245
50465 Harborscape Apartments Huntington Beach CA 92649 Multifamily $4,900,000 $4,891,269
50334 Gardens at Lakewood Apts Jacksonville FL 32207 Multifamily $4,800,000 $4,785,766
50223 Oak Park @ Briar Creek Charlotte NC 28205 Multifamily $4,700,000 $4,686,076
50432 Lacey Corporate Park Apts. Lacey WA 98509 Multifamily $4,600,000 $4,594,529
50222 Oak Park at Nations Ford Charlotte NC 28217 Multifamily $4,600,000 $4,586,372
50325 Oaks at Timuquana Jacksonville FL 32244 Multifamily $4,600,000 $4,583,231
50304 Markey Meadows Townhomes Belton MO 64012 Multifamily $4,600,000 $4,581,978
50219 Brighton Vista Apartments Burbank CA 91505 Multifamily $4,500,000 $4,487,141
50049 American House - Lakeside Clinton Township MI 48038 Multifamily $4,500,000 $4,464,022
50067 Tramway Village Apartments Albuquerque NM 87123 Multifamily $4,400,000 $4,346,280
50342 Silver Manor Apartments Downey CA 90240 Multifamily $4,340,000 $4,330,168
50365 Sandpiper Village Apartments Manteca CA 95336 Multifamily $4,300,000 $4,292,239
50373 March West Commons Apartments Stockton CA 95219 Multifamily $4,200,000 $4,192,763
50120 250 Main Street Apartments Hartford CT 06106 Multifamily $4,200,000 $4,187,779
50209 Mondrian Apartments Washington DC 20005 Multifamily $4,150,000 $4,136,192
50597 La Aloma Apartments Winter Park FL 32792 Multifamily $4,100,000 $4,092,528
50335 The Terraces II At Metairie Metairie LA 70001 Multifamily $3,920,000 $3,910,799
50220 Cedar Trace Apartments Shreveport LA 71105 Multifamily $3,920,000 $3,907,557
50468 Colony Apartments Simi Valley CA 93065 Multifamily $3,850,000 $3,842,904
50431 Ezzard Charles Apartments Cincinnati OH 45203 Multifamily $3,400,000 $3,392,040
50408 Placentia Meadows Placentia CA 92870 Multifamily $3,400,000 $3,388,556
50587 Summerfield Apts Dixon CA 95833 Multifamily $3,300,000 $3,294,063
50326 Willow Court Apts. Seattle WA 98106 Multifamily $3,300,000 $3,289,806
50197 Crescent Woods Apartments Bethpage NY 11714 Multifamily $3,250,000 $3,239,638
50057 American House - Bloomfield Rochester Hills MI 48309 Multifamily $3,256,000 $3,232,370
50006 Dekalb Apartments Bronx NY 10467 Multifamily $3,110,000 $3,084,599
50340 The Spires of Sherwood Apartments Baton Rouge LA 70816 Multifamily $3,040,000 $3,032,610
50087 Parkside Apartments Provo UT 84601 Multifamily $2,975,000 $2,961,972
50093 Cedar Ave and Hampden Place Apts Bronx NY 10468 Multifamily $2,952,000 $2,939,065
50242 Hudson Realty Apartments Jersey City NJ 07304 Multifamily $2,900,000 $2,890,743
50250 Bartlett Heights Apartments Bartlett TN 38134 Multifamily $2,864,000 $2,852,433
50392 12th Street Apartments Atlanta GA 30309 Multifamily $2,850,000 $2,843,589
50410 Spanish Trace Gainesville FL 32607 Multifamily $2,807,600 $2,802,854
50249 Moana Apartments Reno NV 89502 Multifamily $2,800,000 $2,791,886
50254 Greenview Apartments Tamarac FL 33321 Multifamily $2,700,000 $2,685,709
50028 Bella Vista Apartments Riverdale GA 30274 Multifamily $2,600,000 $2,588,579
50163 Silver Lake Apartments Staten Island NY 10301 Multifamily $2,500,000 $2,495,317
50277 Lakeview Manor Apartments Orem UT 84058 Multifamily $2,500,000 $2,492,863
50218 Remington Forest Apartments Mt. Pleasant SC 29464 Multifamily $2,360,000 $2,352,095
50462 Alden Trace Apartments Jacksonville FL 32246 Multifamily $2,340,000 $2,334,445
50091 West 176th Street New York NY 10033 Multifamily $2,224,000 $2,214,255
50147 River Island Apartments Savage MD 20763 Multifamily $2,125,000 $2,115,947
50140 Karen Gardens Apartments Rego Park NY 11373 Multifamily $2,110,000 $2,102,260
50569 Charlestown Properties Boston (Charlestown)MA 02129 Multifamily $2,100,000 $2,096,197
50450 Riverside Apartments Cambridge MA 02138 Multifamily $2,090,000 $2,086,317
50414 Falcon House Apartments Fort Walton Beach FL 32547 Multifamily $2,080,000 $2,075,674
50503 Fremont Court Apts Seattle WA 98103 Multifamily $2,050,000 $2,047,533
50014 The Chimneys Albemarle NC 28001 Multifamily $2,021,851 $2,011,565
50200 Cedar Ridge Apartments Roanoke VA 24018 Multifamily $2,000,000 $1,995,510
50430 The Wedge Apartments St. George UT 84770 Multifamily $2,000,000 $1,995,026
50306 Oasis Apartments Shawnee KS 66203 Multifamily $2,000,000 $1,994,924
50253 Jefferson Arms Apartments Baton Rouge LA 70809 Multifamily $2,000,000 $1,992,363
50080 Vero Beach Landings South Vero Beach FL 32960 Multifamily $1,057,778 $1,053,131
50081 Vero Beach Landings North Vero Beach FL 32960 Multifamily $846,222 $842,505
50377 Rolling Hills Apts. Jennings MO 63136 Multifamily $1,800,000 $1,794,662
50404 Oak Hill Apartments Kansas City MO 64111 Multifamily $1,761,000 $1,757,140
50260 Westview Apartments Davie FL 33023 Multifamily $1,680,000 $1,674,183
50489 Raintree Apartments St. George UT 84770 Multifamily $1,625,000 $1,620,959
50309 Park Regency Apartments Baton Rouge LA 70815 Multifamily $1,600,000 $1,595,174
50339 Madelaine Manor Townhomes Berkeley MO 63136 Multifamily $1,560,000 $1,555,374
50501 Loma Vista Apts San Bernardino CA 92408 Multifamily $1,432,000 $1,429,473
50490 Harborside Apartments Dennis (Dennisport) MA 02639 Multifamily $1,300,000 $1,297,785
50063 Tremont Manor Colorado Springs CO 80907 Multifamily $1,300,000 $1,294,032
50399 63-67 West 107th St. Apartments New York NY 10025 Multifamily $1,260,000 $1,257,269
50412 Landings & Marina Pensacola FL 32507 Multifamily $1,225,000 $1,222,452
50217 Donaree Village Apartments North Charleston SC 29418 Multifamily $1,200,000 $1,197,422
50059 Twins Apartments Dania FL 33004 Multifamily $1,080,000 $1,074,991
50318 Enfield Court Apts. Austin TX 78703 Multifamily $1,030,000 $1,027,711
50469 Southport Apartments Austin TX 78704 Multifamily $1,020,000 $1,017,626
50060 Lisa Apartments Hollywood FL 33020 Multifamily $900,000 $895,932
50215 Lexington Place Albuquerque NM 87112 Multifamily $900,000 $889,628
50481 Silver Sands Factory Stores Sandestin FL 32541 Retail $36,600,000 $36,501,176
50604 Flagler Park Plaza S/C Miami FL 33126 Retail $30,000,000 $29,963,774
50488 Mall St. Vincent Shreveport LA 71104 Retail $19,325,000 $19,290,136
50021 International Drive Value Center Orlando FL 32819 Retail $15,750,000 $15,634,177
50131 Copperwood Shopping Center Houston TX 77095 Retail $15,250,000 $15,198,807
50243 Towers Shopping Center Roanoke VA 24015 Retail $11,000,000 $10,980,803
50328 East Village Square Atlanta GA 30305 Retail $8,275,000 $8,252,561
50464 Flamingo Market Place Pembroke Pines FL 33024 Retail $8,100,000 $8,080,999
50132 Fashion Mall Commons Indianapolis IN 46240 Retail $8,000,000 $7,986,238
50153 Village at Woodland Hills Tulsa OK 74133 Retail $8,000,000 $7,974,398
50699 Parkway Village S/C Provo UT 84603 Retail $6,662,500 $6,651,417
50246 Newberry Crossing Gainesville FL 32606 Retail $5,700,000 $5,685,997
50262 Breezewood Center Fredericksburg VA 22407 Retail $5,200,000 $5,171,613
50301 Foodsco Supermarket EL Cerrito CA 94530 Retail $5,000,000 $4,984,428
50293 Jumbo Sports #53 Pembroke Pines FL 33026 Retail $4,875,000 $4,855,282
50252 Prosperity Center Leesburg VA 20075 Retail $4,800,000 $4,789,997
50442 Borders Retail Center Creve Coeur MO 63141 Retail $4,550,000 $4,550,000
50138 Hunt Club Corners Shopping Center Apopka FL 32703 Retail $4,500,000 $4,483,455
50289 Whalley Commons New Haven CT 06515 Retail $4,440,000 $4,432,637
50055 Ruisseau Village Plano TX 75823 Retail $4,387,400 $4,355,776
50134 Gallery at Rivergate Nashville TN 37115 Retail $4,300,000 $4,275,686
50429 Peachtree Paces Atlanta GA 30305 Retail $4,250,000 $4,243,192
50314 Sunset and 97th Miami FL 33173 Retail $4,240,000 $4,231,146
50199 Oyster Point Square Shopping Center Newport News VA 23606 Retail $4,050,000 $4,031,761
50471 Ajax Mountain Building Aspen CO 81611 Retail $4,000,000 $3,985,326
50303 Jumbo Sports #57 Newark DE 19713 Retail $3,975,000 $3,958,922
50113 Centre South Shopping Center Aiken SC 29803 Retail $3,547,500 $3,533,104
50513 Macey's Shopping Center Logan UT 84321 Retail $3,500,000 $3,490,722
50612 Eastchester Market Shopping Center High Point NC 27262 Retail $3,350,000 $3,344,069
50271 South Salisbury Plaza Shopping Center Salisbury MD 21801 Retail $3,150,000 $3,120,998
50161 Putnam County Plaza Greencastle IN 46135 Retail $3,125,000 $3,117,970
50329 Skillman Audelia Shopping Center Dallas TX 75243 Retail $3,000,000 $2,991,782
50266 The Paler Development Boca Raton FL 33431 Retail $3,000,000 $2,987,515
50116 Price Chopper Plaza Framingham MA 01701 Retail $3,000,000 $2,986,937
50066 East Lake Shopping Center Killeen TX 76543 Retail $2,970,000 $2,932,136
50128 Chapel Hill Shopping Center Indianapolis IN 46214 Retail $2,850,000 $2,843,367
50051 Marketplace @ Tamarac Tamarac FL 33319 Retail $2,800,000 $2,779,680
50168 Rialto Shopping Center Venice FL 33595 Retail $2,675,000 $2,656,462
50186 Princess Jeanne Shopping Center Albuquerque NM 87112 Retail $2,500,000 $2,489,027
50144 Pecos-McLeod Plaza Las Vegas NV 89121 Retail $2,450,000 $2,438,832
50248 Union Park Shopping Center Orlando FL 32817 Retail $1,846,000 $1,842,894
50245 Pompano Center Pompano Beach FL 33063 Retail $570,000 $568,681
50007 Fairmont Village Shopping Center Pasadena TX 77505 Retail $2,410,000 $2,393,381
50002 Worth Plaza Lake Worth FL 33467 Retail $2,400,000 $2,383,281
50158 Norwood Plaza Shopping Center Savannah GA 31406 Retail $2,350,000 $2,341,885
50443 Westside Plaza Shopping Center Newnan GA 30263 Retail $2,300,000 $2,297,286
50283 Walgreens at Camino Gardens Boca Raton FL 33432 Retail $2,256,000 $2,250,828
50095 Vaughn's @ East North Greenville SC 29601 Retail $2,250,000 $2,234,761
50043 Shoppes at Farmville Farmville VA 23901 Retail $1,950,000 $1,942,387
50227 University East Shopping Center Thonotosassa FL 33592 Retail $1,925,000 $1,916,496
50115 Old National Commons Atlanta GA 30032 Retail $1,800,000 $1,788,943
50302 Jumbo Sports #54 Chattanooga TN 37421 Retail $1,725,000 $1,718,023
50518 Windsor Locks Retail Center Windsor Locks CT 06096 Retail $1,700,000 $1,695,632
50205 Lakewood Shopping Center Brandon FL 33511 Retail $1,460,000 $1,453,060
50061 Riverdale Square Shopping Center Atlanta GA 30274 Retail $1,300,000 $1,291,946
50201 Richland Crossing Shopping Center Dallas TX 75243 Retail $1,010,000 $1,007,455
50270 Post Plaza Shopping Center Suitland MD 20746 Retail $850,000 $847,565
50191 Days Suites Kissimmee Lodge
(Main Gate) Kissimmee FL 34746 Hotel $29,350,000 $29,190,339
50027 Holiday Inn Sunspree Resort Hollywood Beach FL 33019 Hotel $7,435,669 $7,379,267
50247 St. Joseph's Holiday Inn & Conference St. Joseph MO 64501 Hotel $5,000,000 $4,984,031
50146 Quality Inn Shenandoah New Market VA 22844 Hotel $2,500,000 $2,484,313
50038 Days Inn - Sellersburg Sellersburg IN 47172 Hotel $2,500,000 $2,470,564
50397 The Baltic Inn San Diego CA 92101 Hotel $2,050,000 $2,045,190
50079 Days Inn - Emmorton Edgewood MD 21040 Hotel $1,400,500 $1,385,487
50704 Research Tri-Center South A Durham NC 27713 Industrial $23,320,000 $23,292,060
50727 Research Tri-Center North B Durham NC 27713 Industrial $20,600,000 $20,575,319
50284 River Oaks Medical Office Flowood MS 39208 Office $10,200,000 $10,156,015
50286 101 Rogers Street Office Building Cambridge MA 02142 Office $5,260,000 $5,249,082
50367 10 Park Place Atlanta GA 30303 Office $5,200,000 $5,187,499
50239 Hamilton Square Showroom High Point NC 27260 Office $3,850,000 $3,838,010
50396 8888 LaDue Rd. LaDue MO 63124 Office $3,700,000 $3,692,336
50288 Ogden Medical Center Ogden UT 84401 Office $3,100,000 $3,091,388
50152 Southern Avenue Office Plaza Mesa AZ 85204 Office $2,400,000 $2,386,465
50405 3-C Office Building Albuquerque NM 87125 Office $2,100,000 $2,093,022
50474 Corporate Oaks Office Building Tulsa OK 74136 Office $2,013,000 $2,009,470
50390 Witchduck Exchange Virgina Beach VA 23462 Office $2,000,000 $1,995,060
50276 Cameron Office and Warehouse Las Vegas NV 89118 Office $1,400,000 $1,395,463
50185 Shrewsbury Center Shrewsbury MA 01545 Office $1,120,000 $1,115,240
50023 Emmorton Office Building Edgewood MD 21040 Office $682,150 $677,448
50370 All Saints Health Care North Hollywood CA 91605 Health Care $11,000,000 $10,966,624
50241 Palm Gardens Nursing Home Brooklyn NY 11218 Health Care $10,500,000 $10,457,160
50485 Bermuda Village Retirement Community Advance NC 27006 Health Care $5,000,000 $4,989,236
50371 Montclair Nursing Center Omaha NE 68144 Health Care $4,500,000 $4,484,109
50092 St. Andrews Care Center Portland OR 97215 Health Care $3,500,000 $3,478,294
50308 Brooklyn Manor Home for Adults Brooklyn NY 11208 Health Care $3,000,000 $2,984,635
50343 Glisan Care Center Portland OR 97220 Health Care $1,750,000 $1,745,797
50022 Belair Residences Pompano Beach FL 33062 Health Care $1,625,000 $1,613,728
50350 Applebee's Store #100
(East Washington) Indianapolis IN 46219 Franchise $2,853,000 $2,834,507
50356 Applebee's Store #200 (Speedway) Speedway IN 46224 Franchise $2,775,000 $2,753,371
50357 Applebee's Store #1900 (Anderson) Anderson IN 46013 Franchise $2,759,000 $2,741,116
50355 Applebee's Store #500 (Plainfield) Plainfield IN 46168 Franchise $2,639,000 $2,621,894
50353 Applebee's Store #700 (Fishers) Fishers IN 46038 Franchise $2,536,000 $2,519,562
50351 Applebee's Store #800 (Franklin) Franklin IN 46131 Franchise $2,528,000 $2,511,614
50359 Applebee's Store #600 (New Castle) New Castle IN 47632 Franchise $2,504,000 $2,487,769
50352 Applebee's Store #400 (Crawfordsville)Crawfordsville IN 47933 Franchise $2,342,000 $2,326,819
50345 Applebee's Store #1000 (Westfield) Carmel IN 46032 Franchise $3,210,000 $3,189,193
50347 Applebee's Store #900 (Kokomo) Kokomo IN 46902 Franchise $3,195,000 $3,174,290
50344 Applebee's Store #1100 (Columbus) Columbus IN 47201 Franchise $3,091,000 $3,070,964
50346 Applebee's Store #1600 (Muncie) Muncie IN 47304 Franchise $3,015,000 $2,988,804
50012 All Storage Self-Storage Facilities Amarillo TX 79109 Mini Storage $4,080,000 $4,029,207
50407 The Gauntlet at Curtis Park Hartwood VA 22471 Golf Course $3,280,000 $3,266,894
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Admin- Admini- Sub-
Loan Mortgage strative strative Servicing Monthly Due
Number Rate Fee Rate Sub-Servicing Fee Fee Rate Payment Date
------ ---- ---------- ---------- ----------------- ---------- ------- ----
<S> <C> <C> <C> <C> <C> <C> <C>
50165 #REF! $0.09 #REF! $0.05 #REF! $196,067.74 1st
50530 #REF! $0.14 #REF! $0.10 #REF! $172,230.95 1st
50230 #REF! $0.14 #REF! $0.10 #REF! $126,976.47 1st
50362 #REF! $0.12 #REF! $0.08 #REF! $122,423.38 1st
50368 #REF! $0.09 #REF! $0.05 #REF! $127,631.12 1st
50204 #REF! $0.14 #REF! $0.10 #REF! $127,477.28 1st
50005 #REF! $0.17 #REF! $0.13 #REF! $128,849.27 1st
50453 #REF! $0.17 #REF! $0.13 #REF! $114,646.91 1st
50446 #REF! $0.14 #REF! $0.10 #REF! $96,523.08 1st
50363 #REF! $0.14 #REF! $0.10 #REF! $56,202.98 1st
50299 #REF! $0.14 #REF! $0.10 #REF! $26,758.54 1st
50305 #REF! $0.14 #REF! $0.10 #REF! $11,551.69 1st
50333 #REF! $0.12 #REF! $0.08 #REF! $65,929.01 1st
50417 #REF! $0.17 #REF! $0.13 #REF! $62,907.11 1st
50048 #REF! $0.17 #REF! $0.13 #REF! $64,065.17 1st
50555 #REF! $0.14 #REF! $0.10 #REF! $60,088.23 1st
50020 #REF! $0.17 #REF! $0.13 #REF! $58,114.65 1st
50054 #REF! $0.17 #REF! $0.13 #REF! $51,603.59 1st
50056 #REF! $0.19 #REF! $0.15 #REF! $51,877.74 1st
50606 #REF! $0.14 #REF! $0.10 #REF! $44,238.28 1st
50264 #REF! $0.14 #REF! $0.10 #REF! $46,452.24 1st
50494 #REF! $0.14 #REF! $0.10 #REF! $41,680.59 1st
50338 #REF! $0.12 #REF! $0.08 #REF! $41,576.07 1st
50420 #REF! $0.13 #REF! $0.09 #REF! $39,748.72 1st
50546 #REF! $0.10 #REF! $0.06 #REF! $38,152.21 1st
50416 #REF! $0.17 #REF! $0.13 #REF! $36,047.56 1st
50452 #REF! $0.10 #REF! $0.06 #REF! $34,499.40 1st
50451 #REF! $0.10 #REF! $0.06 #REF! $34,499.40 1st
50337 #REF! $0.12 #REF! $0.08 #REF! $36,552.76 1st
50465 #REF! $0.17 #REF! $0.13 #REF! $33,227.46 1st
50334 #REF! $0.12 #REF! $0.08 #REF! $33,710.33 1st
50223 #REF! $0.14 #REF! $0.10 #REF! $33,024.15 1st
50432 #REF! $0.14 #REF! $0.10 #REF! $31,177.56 1st
50222 #REF! $0.14 #REF! $0.10 #REF! $32,321.51 1st
50325 #REF! $0.17 #REF! $0.13 #REF! $31,739.71 1st
50304 #REF! $0.14 #REF! $0.10 #REF! $36,468.86 1st
50219 #REF! $0.14 #REF! $0.10 #REF! $32,176.38 1st
50049 #REF! $0.17 #REF! $0.13 #REF! $38,103.38 1st
50067 #REF! $0.17 #REF! $0.13 #REF! $35,712.12 1st
50342 #REF! $0.17 #REF! $0.13 #REF! $30,152.98 1st
50365 #REF! $0.12 #REF! $0.08 #REF! $28,926.37 1st
50373 #REF! $0.14 #REF! $0.10 #REF! $29,079.95 1st
50120 #REF! $0.17 #REF! $0.13 #REF! $29,770.69 1st
50209 #REF! $0.14 #REF! $0.10 #REF! $29,817.19 1st
50597 #REF! $0.14 #REF! $0.10 #REF! $27,415.22 1st
50335 #REF! $0.12 #REF! $0.08 #REF! $26,759.93 1st
50220 #REF! $0.14 #REF! $0.10 #REF! $28,736.25 1st
50468 #REF! $0.14 #REF! $0.10 #REF! $25,562.45 1st
50431 #REF! $0.12 #REF! $0.08 #REF! $23,240.13 1st
50408 #REF! $0.17 #REF! $0.13 #REF! $25,413.91 1st
50587 #REF! $0.14 #REF! $0.10 #REF! $22,243.85 1st
50326 #REF! $0.14 #REF! $0.10 #REF! $22,713.61 1st
50197 #REF! $0.17 #REF! $0.13 #REF! $23,779.41 1st
50057 #REF! $0.17 #REF! $0.13 #REF! $27,681.86 1st
50006 #REF! $0.19 #REF! $0.15 #REF! $25,113.33 1st
50340 #REF! $0.12 #REF! $0.08 #REF! $20,388.79 1st
50087 #REF! $0.17 #REF! $0.13 #REF! $21,725.89 1st
50093 #REF! $0.19 #REF! $0.15 #REF! $22,406.08 1st
50242 #REF! $0.17 #REF! $0.13 #REF! $21,208.46 1st
50250 #REF! $0.14 #REF! $0.10 #REF! $22,221.76 1st
50392 #REF! $0.14 #REF! $0.10 #REF! $19,869.10 1st
50410 #REF! $0.14 #REF! $0.10 #REF! $19,669.61 1st
50249 #REF! $0.17 #REF! $0.13 #REF! $19,885.68 1st
50254 #REF! $0.19 #REF! $0.15 #REF! $20,447.08 1st
50028 #REF! $0.19 #REF! $0.15 #REF! $20,733.38 1st
50163 #REF! $0.12 #REF! $0.08 #REF! $16,431.57 1st
50277 #REF! $0.14 #REF! $0.10 #REF! $17,884.40 1st
50218 #REF! $0.22 #REF! $0.18 #REF! $16,907.33 1st
50462 #REF! $0.14 #REF! $0.10 #REF! $15,883.64 1st
50091 #REF! $0.19 #REF! $0.15 #REF! $16,880.46 1st
50147 #REF! $0.17 #REF! $0.13 #REF! $16,365.92 1st
50140 #REF! $0.19 #REF! $0.15 #REF! $15,822.07 1st
50569 #REF! $0.14 #REF! $0.10 #REF! $14,098.51 1st
50450 #REF! $0.12 #REF! $0.08 #REF! $14,271.66 1st
50414 #REF! $0.17 #REF! $0.13 #REF! $15,059.79 1st
50503 #REF! $0.14 #REF! $0.10 #REF! $13,707.61 1st
50014 #REF! $0.17 #REF! $0.13 #REF! $16,370.21 1st
50200 #REF! $0.14 #REF! $0.10 #REF! $13,956.91 1st
50430 #REF! $0.17 #REF! $0.13 #REF! $14,805.85 1st
50306 #REF! $0.14 #REF! $0.10 #REF! $14,611.12 1st
50253 #REF! $0.14 #REF! $0.10 #REF! $14,745.06 1st
50080 #REF! $0.17 #REF! $0.13 #REF! $8,021.22 1st
50081 #REF! $0.17 #REF! $0.13 #REF! $6,416.97 1st
50377 #REF! $0.12 #REF! $0.08 #REF! $12,641.37 1st
50404 #REF! $0.14 #REF! $0.10 #REF! $12,433.98 1st
50260 #REF! $0.14 #REF! $0.10 #REF! $11,862.06 1st
50489 #REF! $0.14 #REF! $0.10 #REF! $12,029.75 1st
50309 #REF! $0.14 #REF! $0.10 #REF! $11,143.64 1st
50339 #REF! $0.12 #REF! $0.08 #REF! $10,955.86 1st
50501 #REF! $0.14 #REF! $0.10 #REF! $9,768.76 1st
50490 #REF! $0.14 #REF! $0.10 #REF! $9,063.10 1st
50063 #REF! $0.22 #REF! $0.18 #REF! $10,208.54 1st
50399 #REF! $0.29 #REF! $0.25 #REF! $8,944.22 1st
50412 #REF! $0.17 #REF! $0.13 #REF! $8,869.35 1st
50217 #REF! $0.14 #REF! $0.10 #REF! $8,555.52 1st
50059 #REF! $0.19 #REF! $0.15 #REF! $8,450.13 1st
50318 #REF! $0.29 #REF! $0.25 #REF! $7,223.08 1st
50469 #REF! $0.19 #REF! $0.15 #REF! $6,992.82 1st
50060 #REF! $0.29 #REF! $0.25 #REF! $7,106.03 1st
50215 #REF! $0.16 #REF! $0.12 #REF! $10,791.51 1st
50481 #REF! $0.14 #REF! $0.10 #REF! $256,699.98 1st
50604 #REF! $0.14 #REF! $0.10 #REF! $199,792.27 1st
50488 #REF! $0.14 #REF! $0.10 #REF! $130,039.62 1st
50021 #REF! $0.17 #REF! $0.13 #REF! $124,355.54 1st
50131 #REF! $0.14 #REF! $0.10 #REF! $109,147.50 1st
50243 #REF! $0.14 #REF! $0.10 #REF! $75,562.37 1st
50328 #REF! $0.14 #REF! $0.10 #REF! $60,661.34 1st
50464 #REF! $0.10 #REF! $0.06 #REF! $55,311.23 1st
50132 #REF! $0.17 #REF! $0.13 #REF! $55,444.97 1st
50153 #REF! $0.27 #REF! $0.23 #REF! $63,393.68 1st
50699 #REF! $0.14 #REF! $0.10 #REF! $45,905.85 1st
50246 #REF! $0.17 #REF! $0.13 #REF! $42,531.18 1st
50262 #REF! $0.14 #REF! $0.10 #REF! $38,766.42 1st
50301 #REF! $0.14 #REF! $0.10 #REF! $38,955.87 1st
50293 #REF! $0.14 #REF! $0.10 #REF! $38,583.65 1st
50252 #REF! $0.14 #REF! $0.10 #REF! $34,720.08 1st
50442 #REF! $0.14 #REF! $0.10 #REF! $33,712.94 1st
50138 #REF! $0.39 #REF! $0.35 #REF! $33,712.14 1st
50289 #REF! $0.14 #REF! $0.10 #REF! $31,471.87 1st
50055 #REF! $0.17 #REF! $0.13 #REF! $37,406.53 1st
50134 #REF! $0.17 #REF! $0.13 #REF! $34,668.24 1st
50429 #REF! $0.14 #REF! $0.10 #REF! $30,771.21 1st
50314 #REF! $0.14 #REF! $0.10 #REF! $30,640.00 1st
50199 #REF! $0.14 #REF! $0.10 #REF! $30,272.45 1st
50471 #REF! $0.14 #REF! $0.10 #REF! $28,501.24 1st
50303 #REF! $0.14 #REF! $0.10 #REF! $31,460.52 1st
50113 #REF! $0.17 #REF! $0.13 #REF! $26,701.08 1st
50513 #REF! $0.14 #REF! $0.10 #REF! $24,849.02 1st
50612 #REF! $0.14 #REF! $0.10 #REF! $22,807.48 1st
50271 #REF! $0.14 #REF! $0.10 #REF! $28,986.50 1st
50161 #REF! $0.14 #REF! $0.10 #REF! $21,786.29 1st
50329 #REF! $0.14 #REF! $0.10 #REF! $21,887.59 1st
50266 #REF! $0.14 #REF! $0.10 #REF! $23,393.47 1st
50116 #REF! $0.14 #REF! $0.10 #REF! $22,837.41 1st
50066 #REF! $0.17 #REF! $0.13 #REF! $24,316.85 1st
50128 #REF! $0.17 #REF! $0.13 #REF! $22,015.65 1st
50051 #REF! $0.17 #REF! $0.13 #REF! $23,805.04 1st
50168 #REF! $0.17 #REF! $0.13 #REF! $22,225.17 1st
50186 #REF! $0.17 #REF! $0.13 #REF! $20,706.68 1st
50144 #REF! $0.17 #REF! $0.13 #REF! $19,943.16 1st
50248 #REF! $0.22 #REF! $0.18 #REF! $12,970.76 1st
50245 #REF! $0.17 #REF! $0.13 #REF! $4,418.25 1st
50007 #REF! $0.17 #REF! $0.13 #REF! $19,131.87 1st
50002 #REF! $0.17 #REF! $0.13 #REF! $21,437.73 1st
50158 #REF! $0.14 #REF! $0.10 #REF! $17,320.46 1st
50443 #REF! $0.14 #REF! $0.10 #REF! $15,736.88 1st
50283 #REF! $0.17 #REF! $0.13 #REF! $15,581.63 1st
50095 #REF! $0.22 #REF! $0.18 #REF! $18,605.36 1st
50043 #REF! $0.17 #REF! $0.13 #REF! $15,410.35 1st
50227 #REF! $0.17 #REF! $0.13 #REF! $14,540.08 1st
50115 #REF! $0.17 #REF! $0.13 #REF! $14,798.59 1st
50302 #REF! $0.14 #REF! $0.10 #REF! $13,652.68 1st
50518 #REF! $0.14 #REF! $0.10 #REF! $12,320.59 1st
50205 #REF! $0.16 #REF! $0.12 #REF! $11,653.19 1st
50061 #REF! $0.17 #REF! $0.13 #REF! $11,150.91 1st
50201 #REF! $0.17 #REF! $0.13 #REF! $7,658.91 1st
50270 #REF! $0.29 #REF! $0.25 #REF! $6,913.30 1st
50191 #REF! $0.17 #REF! $0.13 #REF! $241,000.12 1st
50027 #REF! $0.17 #REF! $0.13 #REF! $64,294.52 1st
50247 #REF! $0.14 #REF! $0.10 #REF! $38,441.88 1st
50146 #REF! $0.14 #REF! $0.10 #REF! $22,029.00 1st
50038 #REF! $0.17 #REF! $0.13 #REF! $23,729.37 1st
50397 #REF! $0.14 #REF! $0.10 #REF! $15,754.39 1st
50079 #REF! $0.17 #REF! $0.13 #REF! $13,054.50 1st
50704 #REF! $0.14 #REF! $0.10 #REF! $156,717.85 1st
50727 #REF! $0.14 #REF! $0.10 #REF! $138,438.58 1st
50284 #REF! $0.17 #REF! $0.13 #REF! $78,050.75 1st
50286 #REF! $0.17 #REF! $0.13 #REF! $38,120.40 1st
50367 #REF! $0.14 #REF! $0.10 #REF! $39,345.40 1st
50239 #REF! $0.24 #REF! $0.20 #REF! $29,996.02 1st
50396 #REF! $0.12 #REF! $0.08 #REF! $26,840.41 1st
50288 #REF! $0.17 #REF! $0.13 #REF! $22,466.39 1st
50152 #REF! $0.17 #REF! $0.13 #REF! $19,373.99 1st
50405 #REF! $0.14 #REF! $0.10 #REF! $15,806.80 1st
50474 #REF! $0.14 #REF! $0.10 #REF! $13,786.87 1st
50390 #REF! $0.14 #REF! $0.10 #REF! $14,871.01 1st
50276 #REF! $0.17 #REF! $0.13 #REF! $10,680.52 1st
50185 #REF! $0.17 #REF! $0.13 #REF! $8,636.92 1st
50023 #REF! $0.17 #REF! $0.13 #REF! $6,117.14 1st
50370 #REF! $0.14 #REF! $0.10 #REF! $86,876.58 1st
50241 #REF! $0.39 #REF! $0.35 #REF! $89,847.65 1st
50485 #REF! $0.39 #REF! $0.35 #REF! $40,565.06 1st
50371 #REF! $0.14 #REF! $0.10 #REF! $32,758.60 1st
50092 #REF! $0.24 #REF! $0.20 #REF! $30,009.60 1st
50308 #REF! $0.14 #REF! $0.10 #REF! $25,093.20 1st
50343 #REF! $0.17 #REF! $0.13 #REF! $13,249.29 1st
50022 #REF! $0.29 #REF! $0.25 #REF! $14,537.91 1st
50350 #REF! $0.20 #REF! $0.16 #REF! $24,668.79 1st
50356 #REF! $0.20 #REF! $0.16 #REF! $24,895.22 1st
50357 #REF! $0.20 #REF! $0.16 #REF! $23,856.00 1st
50355 #REF! $0.20 #REF! $0.16 #REF! $22,818.41 1st
50353 #REF! $0.20 #REF! $0.16 #REF! $21,927.81 1st
50351 #REF! $0.20 #REF! $0.16 #REF! $21,858.64 1st
50359 #REF! $0.20 #REF! $0.16 #REF! $21,651.12 1st
50352 #REF! $0.20 #REF! $0.16 #REF! $20,250.37 1st
50345 #REF! $0.20 #REF! $0.16 #REF! $27,755.63 1st
50347 #REF! $0.20 #REF! $0.16 #REF! $27,625.93 1st
50344 #REF! $0.20 #REF! $0.16 #REF! $26,726.68 1st
50346 #REF! $0.20 #REF! $0.16 #REF! $27,715.52 1st
50012 #REF! $0.17 #REF! $0.13 #REF! $33,765.50 1st
50407 #REF! $0.17 #REF! $0.13 #REF! $26,124.72 1st
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Original Remaining
Amortization Term to Net
Loan Term Maturity Maturity Rentable Estate Mortgage
Number (months) (months) Date Area (SF) Interest Loan Seller
------ -------- -------- ---- --------- -------- -----------
<S> <C> <C> <C> <C> <C> <C>
50165 360 116 11/01/2007 393,724 Fee Simple NationsBank, N.A.
50530 360 120 03/01/2008 213,767 Fee Simple NationsBank, N.A.
50230 360 80 11/01/2004 169,996 Fee Simple NationsBank, N.A.
50362 360 82 01/01/2005 180,748 Fee Simple NationsBank, N.A.
50368 360 56 11/01/2002 435,584 Fee Simple NationsBank, N.A.
50204 360 114 09/01/2007 459,420 Fee Simple NationsBank, N.A.
50005 360 107 02/01/2007 379,712 Fee Simple NationsBank, N.A.
50453 360 118 01/01/2008 345,280 Fee Simple NationsBank, N.A.
50446 300 118 01/01/2008 290,680 Fee Simple NationsBank, N.A.
50363 300 117 12/01/2007 225,231 Fee Simple NationsBank, N.A.
50299 360 117 12/01/2007 68,840 Fee Simple NationsBank, N.A.
50305 360 117 12/01/2007 28,512 Fee Simple NationsBank, N.A.
50333 360 117 12/01/2007 108,664 Fee Simple NationsBank, N.A.
50417 360 118 01/01/2008 236,486 Fee Simple NationsBank, N.A.
50048 360 111 06/01/2007 121,070 Fee Simple NationsBank, N.A.
50555 300 119 02/01/2008 381,695 Fee Simple NationsBank, N.A.
50020 360 106 01/01/2007 323,679 Fee Simple NationsBank, N.A.
50054 360 112 07/01/2007 171,120 Fee Simple NationsBank, N.A.
50056 360 111 06/01/2007 335,597 Fee Simple NationsBank, N.A.
50606 360 119 02/01/2008 117,212 Fee Simple NationsBank, N.A.
50264 360 56 11/01/2002 125,061 Fee Simple NationsBank, N.A.
50494 360 84 03/01/2005 354,804 Fee Simple NationsBank, N.A.
50338 360 116 11/01/2007 188,976 Fee Simple NationsBank, N.A.
50420 360 118 01/01/2008 149,312 Fee Simple NationsBank, N.A.
50546 360 119 02/01/2008 258,910 Fee Simple NationsBank, N.A.
50416 360 117 12/01/2007 137,740 Fee Simple NationsBank, N.A.
50452 360 118 01/01/2008 102,560 Fee Simple NationsBank, N.A.
50451 360 118 01/01/2008 129,680 Fee Simple NationsBank, N.A.
50337 360 116 11/01/2007 189,702 Fee Simple NationsBank, N.A.
50465 360 118 01/01/2008 74,800 Fee Simple NationsBank, N.A.
50334 360 116 11/01/2007 143,164 Fee Simple NationsBank, N.A.
50223 360 116 11/01/2007 228,600 Fee Simple NationsBank, N.A.
50432 360 119 02/01/2008 162,704 Fee Simple NationsBank, N.A.
50222 360 116 11/01/2007 193,864 Fee Simple NationsBank, N.A.
50325 360 115 10/01/2007 209,884 Fee Simple NationsBank, N.A.
50304 240 118 01/01/2008 157,500 Fee Simple NationsBank, N.A.
50219 360 116 11/01/2007 50,214 Fee Simple NationsBank, N.A.
50049 300 110 05/01/2007 55,850 Fee Simple NationsBank, N.A.
50067 300 107 02/01/2007 164,998 Fee Simple NationsBank, N.A.
50342 360 117 12/01/2007 83,001 Fee Simple NationsBank, N.A.
50365 360 118 01/01/2008 185,856 Fee Simple NationsBank, N.A.
50373 360 118 01/01/2008 117,920 Fee Simple NationsBank, N.A.
50120 360 56 11/01/2002 196,689 Leasehold NationsBank, N.A.
50209 360 115 10/01/2007 107,048 Fee Simple NationsBank, N.A.
50597 360 118 01/01/2008 176,800 Fee Simple NationsBank, N.A.
50335 360 117 12/01/2007 105,600 Fee Simple NationsBank, N.A.
50220 360 115 10/01/2007 149,272 Fee Simple NationsBank, N.A.
50468 360 118 01/01/2008 70,787 Fee Simple NationsBank, N.A.
50431 360 117 12/01/2007 193,200 Fee Simple NationsBank, N.A.
50408 300 117 12/01/2007 67,308 Fee Simple NationsBank, N.A.
50587 360 118 01/01/2008 85,840 Fee Simple NationsBank, N.A.
50326 360 116 11/01/2007 78,870 Fee Simple NationsBank, N.A.
50197 360 115 10/01/2007 53,810 Fee Simple NationsBank, N.A.
50057 300 111 06/01/2007 63,914 Fee Simple NationsBank, N.A.
50006 360 67 10/01/2003 133,200 Fee Simple NationsBank, N.A.
50340 360 117 12/01/2007 127,264 Leasehold NationsBank, N.A.
50087 360 113 08/01/2007 34,902 Fee Simple NationsBank, N.A.
50093 360 112 07/01/2007 109,540 Fee Simple NationsBank, N.A.
50242 360 115 10/01/2007 139,700 Fee Simple NationsBank, N.A.
50250 240 118 01/01/2008 185,250 Fee Simple NationsBank, N.A.
50392 360 117 12/01/2007 56,050 Fee Simple NationsBank, N.A.
50410 360 118 01/01/2008 102,627 Fee Simple NationsBank, N.A.
50249 360 116 11/01/2007 64,392 Fee Simple NationsBank, N.A.
50254 300 115 10/01/2007 77,292 Fee Simple NationsBank, N.A.
50028 360 111 06/01/2007 122,592 Fee Simple NationsBank, N.A.
50163 360 118 01/01/2008 155,786 Fee Simple NationsBank, N.A.
50277 360 116 11/01/2007 54,547 Fee Simple NationsBank, N.A.
50218 360 115 10/01/2007 76,026 Fee Simple NationsBank, N.A.
50462 360 117 12/01/2007 127,160 Fee Simple NationsBank, N.A.
50091 360 112 07/01/2007 56,400 Fee Simple NationsBank, N.A.
50147 300 116 11/01/2007 114,600 Fee Simple NationsBank, N.A.
50140 360 114 09/01/2007 39,937 Fee Simple NationsBank, N.A.
50569 360 118 01/01/2008 25,848 Fee Simple NationsBank, N.A.
50450 360 118 01/01/2008 23,500 Fee Simple NationsBank, N.A.
50414 360 117 12/01/2007 71,220 Fee Simple NationsBank, N.A.
50503 360 119 02/01/2008 25,393 Fee Simple NationsBank, N.A.
50014 360 109 04/01/2007 59,684 Fee Simple NationsBank, N.A.
50200 360 117 12/01/2007 59,510 Fee Simple NationsBank, N.A.
50430 300 118 01/01/2008 49,174 Fee Simple NationsBank, N.A.
50306 300 118 01/01/2008 79,568 Fee Simple NationsBank, N.A.
50253 360 114 09/01/2007 96,000 Fee Simple NationsBank, N.A.
50080 360 112 07/01/2007 37,680 Fee Simple NationsBank, N.A.
50081 360 112 07/01/2007 32,000 Fee Simple NationsBank, N.A.
50377 360 116 11/01/2007 76,800 Fee Simple NationsBank, N.A.
50404 360 117 12/01/2007 79,956 Fee Simple NationsBank, N.A.
50260 360 115 10/01/2007 34,020 Fee Simple NationsBank, N.A.
50489 300 118 01/01/2008 35,412 Fee Simple NationsBank, N.A.
50309 360 116 11/01/2007 77,028 Fee Simple NationsBank, N.A.
50339 360 116 11/01/2007 84,240 Fee Simple NationsBank, N.A.
50501 360 118 01/01/2008 35,775 Fee Simple NationsBank, N.A.
50490 360 118 01/01/2008 33,207 Fee Simple NationsBank, N.A.
50063 360 111 06/01/2007 40,032 Fee Simple NationsBank, N.A.
50399 360 117 12/01/2007 37,000 Fee Simple NationsBank, N.A.
50412 360 117 12/01/2007 34,464 Leasehold NationsBank, N.A.
50217 360 117 12/01/2007 191,824 Fee Simple NationsBank, N.A.
50059 360 111 06/01/2007 26,227 Fee Simple NationsBank, N.A.
50318 360 117 12/01/2007 24,785 Fee Simple NationsBank, N.A.
50469 360 117 12/01/2007 30,540 Fee Simple NationsBank, N.A.
50060 360 111 06/01/2007 23,885 Fee Simple NationsBank, N.A.
50215 120 118 01/01/2008 109,184 Fee Simple NationsBank, N.A.
50481 300 118 01/01/2008 373,737 Fee Simple NationsBank, N.A.
50604 360 119 02/01/2008 348,877 Fee Simple NationsBank, N.A.
50488 360 118 01/01/2008 198,652 Leasehold NationsBank, N.A.
50021 360 106 01/01/2007 185,953 Fee Simple NationsBank, N.A.
50131 360 115 10/01/2007 159,257 Fee Simple NationsBank, N.A.
50243 360 118 01/01/2008 278,487 Fee Simple NationsBank, N.A.
50328 360 116 11/01/2007 49,084 Fee Simple NationsBank, N.A.
50464 360 81 12/01/2004 137,158 Fee Simple NationsBank, N.A.
50132 360 118 01/01/2008 58,332 Fee Simple NationsBank, N.A.
50153 360 78 09/01/2004 224,461 Fee Simple NationsBank, N.A.
50699 300 119 02/01/2008 102,357 Fee Simple NationsBank, N.A.
50246 300 118 01/01/2008 111,050 Fee Simple NationsBank, N.A.
50262 300 115 10/01/2007 84,343 Fee Simple NationsBank, N.A.
50301 300 117 12/01/2007 49,565 Fee Simple NationsBank, N.A.
50293 300 116 11/01/2007 60,853 Fee Simple NationsBank, N.A.
50252 360 117 12/01/2007 64,448 Fee Simple NationsBank, N.A.
50442 300 120 03/01/2008 35,000 Fee Simple NationsBank, N.A.
50138 360 114 09/01/2007 101,576 Fee Simple NationsBank, N.A.
50289 360 118 01/01/2008 36,822 Fee Simple NationsBank, N.A.
50055 300 111 06/01/2007 123,058 Fee Simple NationsBank, N.A.
50134 300 114 09/01/2007 80,493 Fee Simple NationsBank, N.A.
50429 360 118 01/01/2008 11,736 Fee Simple NationsBank, N.A.
50314 360 117 12/01/2007 46,322 Fee Simple NationsBank, N.A.
50199 300 116 11/01/2007 75,400 Fee Simple NationsBank, N.A.
50471 300 117 12/01/2007 21,225 Fee Simple NationsBank, N.A.
50303 300 116 11/01/2007 49,797 Fee Simple NationsBank, N.A.
50113 360 113 08/01/2007 80,836 Fee Simple NationsBank, N.A.
50513 300 118 01/01/2008 87,072 Fee Simple NationsBank, N.A.
50612 360 118 01/01/2008 61,789 Fee Simple NationsBank, N.A.
50271 180 117 12/01/2007 71,655 Fee Simple NationsBank, N.A.
50161 360 117 12/01/2007 93,872 Fee Simple NationsBank, N.A.
50329 360 116 11/01/2007 31,224 Fee Simple NationsBank, N.A.
50266 300 116 11/01/2007 46,632 Fee Simple NationsBank, N.A.
50116 300 116 11/01/2007 52,629 Fee Simple NationsBank, N.A.
50066 300 106 01/01/2007 141,024 Fee Simple NationsBank, N.A.
50128 300 118 01/01/2008 119,426 Fee Simple NationsBank, N.A.
50051 300 111 06/01/2007 67,445 Fee Simple NationsBank, N.A.
50168 240 116 11/01/2007 71,917 Fee Simple NationsBank, N.A.
50186 300 115 10/01/2007 70,688 Fee Simple NationsBank, N.A.
50144 300 115 10/01/2007 44,064 Fee Simple NationsBank, N.A.
50248 360 118 01/01/2008 100,125 Fee Simple NationsBank, N.A.
50245 300 118 01/01/2008 7,990 Fee Simple NationsBank, N.A.
50007 360 107 02/01/2007 21,966 Fee Simple NationsBank, N.A.
50002 300 74 05/01/2004 75,664 Fee Simple NationsBank, N.A.
50158 300 117 12/01/2007 62,270 Fee Simple NationsBank, N.A.
50443 360 119 02/01/2008 52,098 Fee Simple NationsBank, N.A.
50283 360 117 12/01/2007 24,664 Fee Simple NationsBank, N.A.
50095 300 112 07/01/2007 67,905 Fee Simple NationsBank, N.A.
50043 360 112 07/01/2007 29,300 Fee Simple NationsBank, N.A.
50227 300 116 11/01/2007 82,420 Fee Simple NationsBank, N.A.
50115 300 113 08/01/2007 65,673 Fee Simple NationsBank, N.A.
50302 300 116 11/01/2007 40,000 Fee Simple NationsBank, N.A.
50518 300 118 01/01/2008 14,225 Fee Simple NationsBank, N.A.
50205 300 115 10/01/2007 29,929 Fee Simple NationsBank, N.A.
50061 300 112 07/01/2007 60,629 Fee Simple NationsBank, N.A.
50201 360 116 11/01/2007 16,245 Fee Simple NationsBank, N.A.
50270 300 117 12/01/2007 17,760 Fee Simple NationsBank, N.A.
50191 300 78 09/01/2004 363,400 Fee Simple NationsBank, N.A.
50027 300 110 05/01/2007 108,448 Fee Simple NationsBank, N.A.
50247 300 117 12/01/2007 119,490 Fee Simple NationsBank, N.A.
50146 240 116 11/01/2007 33,150 Fee Simple NationsBank, N.A.
50038 240 111 06/01/2007 40,920 Fee Simple NationsBank, N.A.
50397 300 118 01/01/2008 40,752 Fee Simple NationsBank, N.A.
50079 240 112 07/01/2007 32,976 Fee Simple NationsBank, N.A.
50704 360 83 02/01/2005 680,200 Fee Simple NationsBank, N.A.
50727 360 83 02/01/2005 421,500 Fee Simple NationsBank, N.A.
50284 300 116 11/01/2007 102,530 Leasehold NationsBank, N.A.
50286 360 117 12/01/2007 59,268 Fee Simple NationsBank, N.A.
50367 300 118 01/01/2008 138,625 Fee Simple NationsBank, N.A.
50239 300 117 12/01/2007 101,914 Fee Simple NationsBank, N.A.
50396 360 117 12/01/2007 40,398 Fee Simple NationsBank, N.A.
50288 360 104 11/01/2006 46,052 Fee Simple NationsBank, N.A.
50152 300 114 09/01/2007 57,922 Fee Simple NationsBank, N.A.
50405 300 117 12/01/2007 55,111 Fee Simple NationsBank, N.A.
50474 360 118 01/01/2008 52,261 Fee Simple NationsBank, N.A.
50390 300 82 01/01/2005 85,768 Fee Simple NationsBank, N.A.
50276 300 117 12/01/2007 49,312 Fee Simple NationsBank, N.A.
50185 300 80 11/01/2004 17,262 Fee Simple NationsBank, N.A.
50023 300 110 05/01/2007 12,684 Fee Simple NationsBank, N.A.
50370 300 117 12/01/2007 29,554 Fee Simple NationsBank, N.A.
50241 300 115 10/01/2007 25,068 Fee Simple NationsBank, N.A.
50485 300 118 01/01/2008 12,148 Fee Simple NationsBank, N.A.
50371 300 117 12/01/2007 65,000 Fee Simple NationsBank, N.A.
50092 300 112 07/01/2007 40,280 Fee Simple NationsBank, N.A.
50308 240 117 12/01/2007 50,840 Fee Simple NationsBank, N.A.
50343 300 118 01/01/2008 33,847 Fee Simple NationsBank, N.A.
50022 300 110 05/01/2007 16,643 Fee Simple NationsBank, N.A.
50350 240 116 11/01/2007 5,229 Fee Simple NationsBank, N.A.
50356 219 116 11/01/2007 5,396 Leasehold NationsBank, N.A.
50357 240 116 11/01/2007 5,794 Fee Simple NationsBank, N.A.
50355 240 116 11/01/2007 5,000 Fee Simple NationsBank, N.A.
50353 240 116 11/01/2007 5,229 Fee Simple NationsBank, N.A.
50351 240 116 11/01/2007 5,000 Fee Simple NationsBank, N.A.
50359 240 116 11/01/2007 5,000 Fee Simple NationsBank, N.A.
50352 240 116 11/01/2007 5,000 Fee Simple NationsBank, N.A.
50345 240 116 11/01/2007 5,400 Fee Simple NationsBank, N.A.
50347 240 116 11/01/2007 5,229 Fee Simple NationsBank, N.A.
50344 240 116 11/01/2007 5,400 Fee Simple NationsBank, N.A.
50346 207 116 11/01/2007 6,000 Leasehold NationsBank, N.A.
50012 300 106 01/01/2007 155,048 Fee Simple NationsBank, N.A.
50407 300 116 11/01/2007 10,616 Leasehold NationsBank, N.A.
</TABLE>
<PAGE>
SCHEDULE II
SUB-SERVICING AGREEMENTS IN EFFECT
AS OF THE CLOSING DATE
NationsBank, N.A. Sub-Servicing Agreements
Seller Servicer Agreement Date
- --------------- --------------
Bankers Mutual Mortgage, Inc. March 25, 1998
Berkshire Mortgage Finance Corporation March 25, 1998
First Security Bank, N.A. March 25, 1998
L.J. Melody & Company March 25, 1998
Midland Loan Services, L.P. March 25, 1998
Patrician Financial Company Limited Partnership March 25, 1998
Washington Mortgage Financial Group, Ltd. March 25, 1998
<PAGE>
SCHEDULE III
Schedule of Modified Mortgage Loans
[None]
<PAGE>
SCHEDULE IV
Schedule of Mortgage Loans Permitting
Future Subordinate Liens on Mortgaged
Properties
<TABLE>
<CAPTION>
Loan Property Property Name Description of Future Permitted Liens
- ------------------- -------------------------------- ---------------------------------------------
<S> <C> <C> <C>
50335 The Terraces II at Metairie Second lien may be obtained after two
years upon satisfaction of certain
conditions, including minimum
loan-to-value and debt service coverage
tests.
50377 Cimarron Place Second lien may be obtained after two
years upon satisfaction of certain
conditions, including minimum
loan-to-value and debt service coverage
tests.
50338 Bluebonnet Place Second lien may be obtained after two
years upon satisfaction of certain
conditions, including minimum
loan-to-value and debt service coverage
tests.
50339 Madeline Manor Townhouses Second lien may be obtained after two
years upon satisfaction of certain
conditions, including minimum
loan-to-value and debt service coverage
tests.
50340 The Spires of Sherwood Second lien may be obtained after two
Apartments years upon satisfaction of certain
conditions, including minimum
loan-to-value and debt service coverage
tests.
50337 Rolling Hills Apartments Second lien may be obtained after two
years upon satisfaction of certain
conditions, including minimum
loan-to-value and debt service coverage
tests.
50431 Ezzard Charles Apartments Second lien may be obtained after two
years upon satisfaction of certain
conditions, including minimum
loan-to-value and debt service coverage
tests.
50334 Gardens at Lakewood Second lien may be obtained after two
years upon satisfaction of certain
conditions, including minimum
loan-to-value and debt service coverage
tests.
</TABLE>
<PAGE>
SCHEDULE V
SCHEDULE OF EXCEPTIONS TO MORTGAGE FILE DELIVERY
March 25, 1998
The Persons Named
on Schedule 1 Hereto
Re: NationsLink Funding Corporation,
Commercial Mortgage Pass-Through Certificates, Series 1998-1
Ladies and Gentlemen:
We are rendering this opinion letter pursuant to Section 6(b) of that
certain Underwriting Agreement, dated March 9, 1998 (the "Underwriting
Agreement"), by and between NationsLink Funding Corporation, a Delaware
corporation ("NationsLink"), and NationsBanc Montgomery Securities LLC, a North
Carolina corporation ("NationsBanc Montgomery"), as underwriter (in such
capacity, the "Underwriter"), and Section 3(e) of that certain Private Placement
Agency Agreement, dated March 9, 1998 (the "Placement Agreement"), by and
between NationsLink and NationsBanc Montgomery, as placement agent (in such
capacity, the "Placement Agent"). We have acted as special counsel to
NationsBank, N.A. ("NationsBank") and NationsLink in connection with (i) the
purchase by NationsLink from NationsBank of all of its right, title and interest
in and to the Mortgage Loans (as defined below) pursuant to that certain
Mortgage Loan Purchase and Sale Agreement dated as of March 25, 1998 (the
"Mortgage Loan Purchase and Sale Agreement"), by and between NationsLink and
NationsBank, and (ii) the execution of the Pooling and Servicing Agreement (as
defined below) by NationsLink and NationsBank. We have also acted as counsel to
NationsBanc Montgomery in its capacity as Underwriter and Placement Agent in
connection with (i) the issuance of NationsLink's Commercial Mortgage
Pass-Through Certificates, Series 1998-1 (the "Certificates"), consisting of
sixteen classes: the Class A-1 Certificates, the Class A-2 Certificates, the
Class A-3 Certificates, the Class X-1 Certificates, the Class X-2 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 J Certificates, the Class K Certificates,
the Class R-I Certificates and the Class R-II Certificates; (ii) the sale by
NationsLink 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 X-1, the
Class X-2, the Class B, the Class C, the Class D and the Class E Certificates
(collectively, the "Publicly Offered Certificates"); and (iii) the sale by
NationsLink through the Placement Agent pursuant to the Placement Agreement of
the Class F, the Class G, the Class H, Class J and the Class K Certificates
(collectively, the "Privately Placed Certificates"). The Certificates are being
issued pursuant to that certain Amended and Restated Pooling and Servicing
Agreement, dated as of March 1, 1998 (the "Pooling and Servicing Agreement"), by
and among NationsLink, as depositor, NationsBank, as mortgage loan seller,
Midland Loan Services, L.P., as master servicer (the "Master Servicer"), Lennar
Partners, Inc., as special servicer (the "Special Servicer"), and Norwest Bank
Minnesota, National Association, as trustee (in such capacity, the "Trustee")
and as REMIC administrator (in such capacity, 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 primarily of the mortgage loans (the "Mortgage Loans")
identified on Schedule I to the Pooling and Servicing Agreement, together with
certain related assets.
In rendering the opinions set forth below, we have examined and relied upon
originals, copies or specimens, certified or otherwise identified to our
satisfaction, of the Underwriting Agreement, the Placement Agreement, the
Pooling and Servicing Agreement and the Mortgage Loan Purchase and Sale
Agreement and all exhibits thereto (collectively, the "Agreements"), the
Registration Statement on Form S-3 (No. 333-43609) which was filed with the
Securities and Exchange Commission (the "Commission") on December 31, 1997 and
which became effective on February 4, 1998 (as amended through the date hereof,
the "Registration Statement"), the Prospectus and Prospectus Supplement relating
to the Offered Certificates, each dated March 9, 1998 (collectively, the
"Prospectus") as filed with the Commission pursuant to Rule 424(b)(5) under the
Securities Act of 1933, as amended (the "Act"), on March 11, 1998, and the
Private Placement Memorandum dated March 24, 1998 (the "Private Placement
Memorandum") relating to the Privately Placed Certificates, specimen forms of
the Certificates, and such certificates, corporate records and other documents,
agreements, instruments and opinions, including, among other things, those
delivered at the closing of the purchase and sale of the Certificates (the
"Closing"), as we have deemed necessary as a basis for such opinions 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
Commission through the Commission's Electronic Data Gathering, Analysis and
Retrieval 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
opinions that were not known to us, we have relied upon statements, certificates
and representations of officers and other representatives of NationsLink,
NationsBank, the Master Servicer, the Special Servicer, the Trustee, the REMIC
Administrator and NationsBanc Montgomery and of public officials.
We have assumed that each party to the Agreements had the power and
authority to enter into and perform the obligations undertaken by it under the
Agreements to which it is a party, that the Agreements were duly authorized,
executed and delivered by such party, and that, with respect to each such party
(other than NationsLink and NationsBank), each such Agreement constitutes the
legal, valid, and binding agreement of such party. As used herein, "to our
knowledge" means the conscious awareness, without independent investigation, of
facts or other information by any lawyer in our firm actively involved in the
transactions contemplated by the Agreement.
In rendering the opinions below, we do not express any opinion concerning
the laws of any jurisdiction other than the substantive laws of the State of New
York and, where expressly referred to below, the substantive federal laws of the
United States of America (in each case without regard to conflicts of laws
principles), and we express no opinion as to whether a court outside the State
of New York would honor the choice of New York law in any agreement or
instrument referred to herein.
For purposes hereof, the terms "Registration Statement" and "Prospectus" do
not include the Forms 8-K, or the exhibits thereto, filed with the Securities
and Exchange Commission on February 27, 1998 and March 11, 1998, and we express
no view with respect thereto.
Based upon and subject to the foregoing, we are of the opinion that:
1. The Registration Statement (which for purposes of this opinion shall not
be deemed to include any exhibits filed therewith or any documents incorporated
therein by reference) is effective under the Act and, to our knowledge, no stop
order with respect thereto has been issued by the Commission.
2. The Registration Statement, as of its effective date, and the
Prospectus, as of its date (in each case, with the exception of any information
incorporated by reference therein and any financial, numerical, statistical or
quantitative information included therein, as to which we express no view),
appear on their face to be appropriately responsive in all material respects to
the requirements of the Act and the rules and regulations thereunder applicable
to such documents as of the relevant date.
3. The statements in the Prospectus and the Private Placement Memorandum
under the headings "Certain Federal Income Tax Consequences" and "Certain ERISA
Considerations", insofar as such statements purport to summarize matters of
federal law or legal conclusions with respect thereto, have been reviewed by us
and are correct in all material respects.
4. The Pooling and Servicing Agreement is not required to be qualified
under the Trust Indenture Act of 1939, as amended, and the Trust Fund created by
the Pooling and Servicing Agreement is not required to be registered under the
Investment Company Act of 1940, as amended.
5. Each of the Mortgage Loan Purchase and Sale Agreement and the Pooling
and Servicing Agreement constitutes the legal, valid and binding agreement of
NationsLink and NationsBank, enforceable against each of them in accordance with
its terms, except as such enforceability may be limited by applicable
bankruptcy, insolvency, fraudulent conveyance, liquidation, receivership,
moratorium, reorganization and similar laws affecting creditors' rights
generally, and general principles of equity (regardless of whether enforcement
is sought in a proceeding in equity or at law), and except that the enforcement
of rights with respect to indemnification and contribution obligations may be
limited by applicable law.
6. The Certificates, when duly and validly executed, authenticated and
delivered in accordance with the Pooling and Servicing Agreement and paid for in
accordance with the Underwriting Agreement or the Placement Agreement, as
applicable, will be validly issued and outstanding and entitled to the benefits
provided by the Pooling and Servicing Agreement.
7. Assuming the accuracy of the representations and warranties in the
Placement Agreement and compliance with the terms and provisions of the Pooling
and Servicing Agreement and the Placement Agreement, it is not necessary in
connection with the offer and sale of the Privately Placed Certificates by
NationsLink to the initial purchasers thereof, under the circumstances
contemplated by the Placement Agreement and the Pooling and Servicing Agreement,
to register the Privately Placed Certificates under the Act.
We are furnishing this letter to you solely for your benefit in connection
with the transactions referred to herein. This opinion 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,
<PAGE>
SCHEDULE 1
NationsBanc Montgomery Securities LLC
100 North Tryon Street
Charlotte, North Carolina 28255
Moody's Investor Service, Inc.
99 Church Street
New York, New York 10007
Fitch IBCA, Inc.
One State Street Plaza
New York, New York 1007
Duff & Phelps Credit Rating Co.
55 East Monroe Street
Chicago, Illinois 60603
Midland Loan Services, L.P.
in its capacity as Master Servicer
210 West 10th Street, 6th Floor
Kansas City, Missouri 64105
Lennar Partners, Inc.
in its capacity as Special Servicer
700 NW 107th Avenue, Suite 400
Miami, Florida 33172
Norwest Bank Minnesota, National Association
in its capacity as Trustee and REMIC Administrator
3 New York Plaza, 15th Floor
New York, New York 10004
<PAGE>
March 25, 1998
To the Persons Named on
Schedule 1 Hereto:
Re: NationsLink Funding Corporation,
Commercial Mortgage Pass-Through Certificates, Series 1998-1
Ladies and Gentlemen:
We are rendering this opinion letter pursuant to Section 6(b) of that
certain Underwriting Agreement, dated March 9, 1998 (the "Underwriting
Agreement"), by and between NationsLink Funding Corporation, a Delaware
corporation ("NationsLink"), and NationsBanc Montgomery Securities LLC, a North
Carolina corporation ("NationsBanc Montgomery"), as underwriter (in such
capacity, the "Underwriter"), and Section 3(e) of that certain Private Placement
Agency Agreement, dated as of March 9, 1998 (the "Placement Agreement"), by and
between NationsLink and NationsBanc Montgomery, as placement agent (in such
capacity, the "Placement Agent"). We have acted as special counsel to
NationsLink and the Underwriter and Placement Agent in connection with (i) the
issuance of NationsLink's Commercial Mortgage Pass-Through Certificates, Series
1998-1 (the "Certificates"), consisting of sixteen classes: the Class A-1
Certificates, the Class A-2 Certificates, the Class A-3 Certificates, the Class
X-1 Certificates, the Class X-2 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 J Certificates, the Class K Certificates, the Class R-I Certificates and
the Class R-II Certificates; (ii) the sale by NationsLink 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 X-1, the Class X-2, the Class B, the Class
C, the Class D and the Class E Certificates (collectively, the "Publicly Offered
Certificates"); and (iii) the sale by NationsLink through the Placement Agent
pursuant to the Placement Agreement of the Class F, the Class G, the Class H,
the Class J and the Class K Certificates (collectively, the "Privately Placed
Certificates").
The Certificates are being issued pursuant to that certain Amended and
Restated Pooling and Servicing Agreement, dated as of March 1, 1998 (the
"Pooling and Servicing Agreement"), by and among NationsLink, as depositor,
NationsBank, N.A., as mortgage loan seller, Midland Loan Services, L.P., as
master servicer, Lennar Partners, Inc., as special servicer, and Norwest Bank
Minnesota, National Association, as trustee (in such capacity, the "Trustee")
and as REMIC Administrator (in such capacity, 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 Schedule I 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 March 9, 1998 and relating to the Publicly Offered
Certificates, the Private Placement Memorandum dated March 24, 1998 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 NationsLink, the Trustee, the REMIC Administrator and
NationsBanc Montgomery 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 compliance with all provisions of the Pooling and Servicing Agreement
as in effect on the Closing Date, (a) REMIC I and REMIC II 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 X-1, Class X-2, Class B, Class C, Class D, Class E, Class F,
Class G, Class H, Class J and Class K Certificates will constitute "regular
interests" in REMIC II and the Class R-II Certificates will constitute the sole
class of "residual interest" in REMIC II 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-1 Uncertificated Interest, Class
LWAC-2 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 LK
Uncertificated Interest will constitute "regular interests" in REMIC I and the
Class R-I Certificates will constitute the sole class of "residual interest" in
REMIC I 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,
<PAGE>
SCHEDULE 1
NationsBanc Montgomery Securities LLC
100 North Tryon Street
Charlotte, North Carolina 28255
NationsLink Funding Corporation
100 North Tryon Street
Charlotte, North Carolina 28255
Moody's Investor Service, Inc.
99 Church Street
New York, New York 10007
Fitch IBCA, Inc.
One State Street Plaza
New York, New York 1007
Duff & Phelps Credit Rating Co.
55 East Monroe Street
Chicago, Illinois 60603
Midland Loan Services, L.P.
in its capacity as Master Servicer
210 West 10th Street, 6th Floor
Kansas City, Missouri 64105
Lennar Partners, Inc.
in its capacity as Special Servicer
700 NW 107th Avenue, Suite 400
Miami, Florida 33172
Norwest Bank Minnesota, National Association
in its capacity as Trustee and REMIC Administrator
3 New York Plaza, 15th Floor
New York, New York 10004
<PAGE>
March 25, 1998
NationsBanc Montgomery Securities LLC
100 North Tryon Street
Charlotte, North Carolina 28255
Ladies and Gentlemen:
This letter is with reference to the NationsLink Funding Corporation
Commercial Mortgage Pass-Through Certificates, Series 1998-1, which consist of
sixteen classes: the Class A-1 Certificates, the Class A-2 Certificates, the
Class A-3 Certificates, the Class X-1 Certificates, the Class X-2 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 J Certificates, the Class K Certificates,
the Class R-I Certificates and the Class R-II Certificates. The Class A-1, Class
A-2, Class A-3, Class X-1, Class X-2, Class B, Class C, Class D, and Class E
Certificates are collectively referred to herein as the "Publicly Offered
Certificates"; and the Class F, Class G, Class H, Class J and Class K
Certificates are collectively referred to herein as the "Privately Placed
Certificates."
A Registration Statement on Form S-3 (No. 333-43609) was filed with the
Securities and Exchange Commission (the "Commission") on December 31, 1997 and
became effective on February 4, 1998 (as amended through the date hereof, the
"Registration Statement"). The Publicly Offered Certificates have been offered
by the Prospectus dated March 9, 1998 (the "Basic Prospectus"), as supplemented
by the Prospectus Supplement dated March 9, 1998 (the "Prospectus Supplement"),
which updates or supplements certain information contained in the Basic
Prospectus (the Basic Prospectus and the Prospectus Supplement, together, the
("Prospectus")). The Privately Placed Certificates have been offered by the
Private Placement Memorandum dated March 24, 1998 (the "Private Placement
Memorandum"). Capitalized terms used and not otherwise defined herein have the
meanings given to them in the Amended and Restated Pooling and Servicing
Agreement, dated as of March 1, 1998, among NationsLink Funding Corporation
("NationsLink"), as depositor, NationsBank, N.A., as mortgage loan seller,
Midland Loan Services, L.P., as master servicer, Lennar Partners, Inc., as
special servicer, and Norwest Bank Minnesota, National Association, as trustee
and as REMIC Administrator.
For purposes hereof, the terms "Registration Statement," "Basic
Prospectus," "Prospectus Supplement" and "Prospectus" do not include the Forms
8-K, or the exhibits thereto, filed with the Securities and Exchange Commission
on February 27, 1998 and March 11, 1998, and we express no view with respect
thereto. We assume, for purposes hereof, the conformity of the text of each
document filed with the Commission through the Commission's Electronic Data
Gathering, Analysis and Retrieval System to the printed document reviewed by us.
We have not ourselves checked the accuracy, completeness or fairness of, or
otherwise verified, the information contained in the Registration Statement, the
Prospectus or the Private Placement Memorandum, and we do not pass upon or
assume any responsibility therefor (other than as set forth in paragraph 3 of
our opinion to you of even date herewith (the "Opinion")). We note in
particular, without limiting the generality of the foregoing, that except for
our limited review of the Mortgage Files relating to the Mortgage Loans
identified on Exhibit A hereto (as discussed below), and with your consent, we
have not reviewed the Mortgage Files or other documents prepared or delivered in
connection with the origination or modification of the Mortgage Loans. However,
in the course of our review of the Registration Statement, Prospectus and
Private Placement Memorandum, we have attended certain conferences and
participated in conversations with representatives of NationsLink and
NationsBank, your representatives and NationsLink's independent public
accountants. On the basis of the information which we gained in the course of
the representation referred to above and our examination of the documents
referred to in the Opinion, considered in light of our understanding of
applicable law and the experience we have gained through our practice, nothing
has come to our attention in the course of our review of the Registration
Statement, the Prospectus and the Private Placement Memorandum which causes us
to believe that, as of the effective date of the Registration Statement, the
Registration Statement contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary to
make the statements therein not misleading, or that as of its date or, as of the
date hereof, the Prospectus or the Private Placement Memorandum, as the case may
be, contained or contains any untrue statement of a material fact or omitted or
omits to state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; it being understood that we express no view as to any information
incorporated by reference in the Registration Statement, the Prospectus or the
Private Placement Memorandum or as to the adequacy or accuracy of (i) the
financial, numerical, statistical or quantitative information included in the
Registration Statement, the Prospectus or the Private Placement Memorandum or
(ii) any information contained in any computer disk, CD-ROM or other electronic
media accompanying the Prospectus Supplement.
With respect to the Mortgage Loans listed on Exhibit A hereto, we note that
we reviewed only the files relating to such Mortgage Loans and that each such
review was limited in scope as indicated on Exhibit A. By "Full Review" we mean
review of (i) the note, (ii) the mortgage (or deed of trust), (iii) any
assignment of leases and rents, (iv) the title policy or commitment (including
any exception that may materially affect the property), (v) the survey and (vi)
opinions rendered by borrower's counsel in connection with the origination of
such Mortgage Loan. By "Ground Lease", we mean review of only the related ground
lease (including any amendments thereto). By "Crossed Debt", we mean review only
of the provisions of the related note and mortgage (or deed of trust) that
purport to effect the cross-collateralization or cross-default of such Mortgage
Loan with another mortgage loan or group of mortgage loans. By "Additional
Debt", we mean review only of the provisions of the related note, mortgage (or
deed or trust) and loan agreement that purport to permit the related borrower to
incur indebtedness in addition to that represented by the Mortgage Loan. We did
not review the environmental survey or the engineer's report with respect to any
Mortgage Loan, nor did we perform any credit review or otherwise attempt to
obtain any information concerning the credit or reputation of the borrower or
its principals.
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,
<PAGE>
<TABLE>
<CAPTION>
NATIONSLINK 98-1
MORTGAGE LOAN FILE REVIEW - SUMMARY
CONTROL/ PROPERTY NAME PROPERTY LOCATION ORIGINAL BALANCE SCOPE
LOAN (CITY/STATE) A: FULL REVIEW
NUMBER B: GROUND LEASE
C: CROSSED DEBT
D: ADDITIONAL DEBT
<S> <C> <C> <C> <C>
50005 Somerset Pointe Apartments Las Vegas, NV 17,167,000 A
50021 International Drive Value Center Orlando, FL 15,750,000 A and D
50027 Holiday Inn Sunspree Resort Hollywood Beach, FL 7,435,665 A
50038 Days Inn - Sellersburg Sellersburg, IN 2,500,000 D
50056 Crystal Lake Apartments Miami, FL 6,750,000 D
50067 Tramway Village Apartments Alberquerque, NM 4,400,000 A and D
50080 Vero Beach Landings South Vero Beach, FL 1,057,778 A
50081 Vero Beach Landings North Vero Beach, FL 846,222 C
50092 St. Andrews Care Centers Portland, OR 3,500,000 C and D
50120 250 Main Street Apartments Hartford, CT 4,200,000 A and B
50131 Copperwood Shopping Center Houston, TX 15,250,000 A
50140 Karen Gardens Apartments Rego Park, NY 2,110,000 D
50146 Quality Inn Shenandoah New Market, VA 2,500,000 D
50165 La Terraza Apartments San Diego, CA 28,000,000 A
50191 Days Suites Kissimmee Lodge Kissimmee, FL 29,350,000 A and D
50204 La Palma Apartments Phoenix, AZ 17,880,000 A and D
50230 Playa Pacifica Apartments Hermosa Beach, CA 18,800,000 A and D
50241 Palm Gardens Nursing Home Brooklyn, NY 10,500,000 A
50243 Towers Shopping Center Roanoke, VA 11,000,000 A
50245 Pompano Center Pompano, FL 570,000 C
50247 St. Joseph's Holiday Inn & Conference St. Joseph, MO 5,000,000 D
50248 Union Park Shopping Center Orlando, FL 1,846,000 A and C
50284 River Oaks Medical Office Flowood, MS 10,200,000 A and B and C
50299 Brandywood Park Apartments Albuquerque, NM 3,880,000 C
50305 Briarwood Park Apartments Albuquerque, NM 1,675,000 C
50335 The Terraces at Metarie Metarie, LA 3,920,000 D
50337 Cimarron Place Garland, TX 5,240,000 D
50338 Bluebonnet Place Baton Rouge, LA 5,920,000 D
50339 Madeline Manner Townhomes Berkeley, MD 1,560,000 D
50340 The Spires of Sherwood Apartments Baton Rouge, LA 3,040,000 A and B
50344 Applebee's Store #1100 (Columbus) Columbus, IN 3,091,000 C and D
50345 Applebee's Store #1000 (Westfield) Carmel, IN 3,210,000 A and C
50346 Applebee's Store #1600 (Muncie) Muncie, IN 3,015,000 A and B and C
50347 Applebee's Store # 900 (Kokomo) Kokomo, IN 3,195,000 C
50350 Applebee's Store # 100 (East Washington) Indianapolis, IN 2,834,507 A and C
50351 Applebee's Store # 800 (Franklin) Franklin, IN 2,528,000 C
50352 Applebee's Store # 400 (Crawfordsville) Crawfordsville, IN 2,326,000 C
50353 Applebee's Store # 700 (Fisher's) Fisher, IN 2,536,000 C
50355 Applebee's Store # 500 (Plainfield) Plainfiled, IN 2,639,000 C
50356 Applebee's Store # 200 (Speedway) Speedway, IN 2,775,000 A and B and C
50357 Applebee's Store #1900 (Anderson) Anderson, IN 2,759,000 C
50359 Applebee's Store # 600 (New Castle) New Castle, IN 2,504,000 C
50362 Trinity Towers San Francicso, CA 18,750,000 A
50363 Montgomery Park Apartments Albuquerque, NM 7,700,000 A and C
50368 LeClub Apartments Miami Lakes, FL 18,200,000 A
50370 All Saints Health Care North Hollywood, CA 11,000,000 A
50397 The Baltic Inn San Diego, CA 2,050,000 D
50407 The Gauntlet @ Curtis Park Hartwood, VA 3,280,000 A and B
50412 Landings & Marina Pensacola, FL 1,225,000 A
50431 Ezzard Charles Apartments Cincinnati, OH 3,400,000 B and D
50446 TownPark Crossing Apartments Kennesaw, GA 13,700,000 A
50453 Buckingham Station Apartments Denver, CO 17,000,000 A
50481 Silver Sands Factory Store Sandestin, FL 36,600,000 A
50488 Mall St. Vincent Shreveport, LA 19,325,000 A and B
50530 University Towers Raleigh, NC 26,500,000 A
50555 Loch Raven Apartments Baltimore, MD 8,225,000 D
50604 Flagler Park Plaza S/C Miami, FL 30,000,000 A
50704 Research Tri-Center South A Durham, NC 23,320,000 A and D
50727 Research Tri-Center North B Durham, NC 20,000,000 A and D
</TABLE>
