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: December 3, 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 333-57473 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 Pooling and Servicing Agreement (as defined
below) for the NationsLink Funding Corporation, Commercial Mortgage Pass-Through
Certificates, Series 1998-2 (the "Certificates"). On November 19, 1998,
NationsLink Funding Corporation (the "Company") caused the issuance, pursuant to
an Amended and Restated Pooling and Servicing Agreement, dated as of November 1,
1998 (the "Pooling and Servicing Agreement"), by and among the Company, as
depositor, NationsBank, N.A., as mortgage loan seller, Bank of America NT&SA, as
an additional warranting party, Midland Loan Services, Inc., as master servicer,
Lennar Partners, Inc., as special servicer, and Norwest Bank Minnesota, National
Association, as trustee and REMIC Administrator, of the Class A-1, Class A-2,
Class X, Class B, Class C, Class D and Class E Certificates (the "Publicly
Offered Certificates"), with an aggregate principal balance as of November 1,
1998 of $1,399,564,622. The Publicly Offered Certificates were sold to
NationsBanc Montgomery Securities LLC ("NationsBanc Montgomery") pursuant to an
Underwriting Agreement, dated November 5, 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 Publicly Offered
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/ James E. Naumann
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Name: James E. Naumann
Title: Senior Vice President
Date: December 3, 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,
BANK OF AMERICA NT&SA,
Additional Warranting Party,
MIDLAND LOAN SERVICES, INC.
Master Servicer,
LENNAR PARTNERS, INC.,
Special Servicer,
and
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION,
Trustee and REMIC Administrator,
---------------------------------
POOLING AND SERVICING AGREEMENT
Dated as of November 1, 1998
(Amending and Restating the Pooling
and Servicing Agreement dated as of September 1, 1998)
---------------------------------
Commercial Mortgage Pass-Through Certificates
Series 1998-2
================================================================================
<PAGE>
TABLE OF CONTENTS
Section Page
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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 Incorporation of Preliminary Statement
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 and Additional Warranting Party'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 and the
Additional Warranting Party
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 Class R-II Certificates; Creation of the REMIC II
Regular Interests
2.12 Conveyance of REMIC II Uncertificated Regular Interests; Acceptance
of REMIC III by the Trustee
2.13 Issuance of the REMIC III 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, the REMIC II
Distribution Account and the REMIC III Distribution Account
3.05 Permitted Withdrawals From the Certificate Account and the
Distribution Account
3.06 Investment of Funds in the Certificate Account, the Interest
Reserve 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
3.26 Certain Matters with Respect to Loans Permitting Defeasance,
Franchise Loans and Certain Loans Permitting Additional Debt
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 Expenses
4.05 Interest Reserve Account
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 ADDITIONAL
WARRANTING PARTY, THE MASTER SERVICER, THE SPECIAL SERVICER
AND THE REMIC ADMINISTRATOR
6.01 Liability of the Depositor, the Mortgage Loan Seller, the
Additional Warranting Party, the Master Servicer, the Special
Servicer and the REMIC Administrator
6.02 Merger, Consolidation or Conversion of the Depositor, the Mortgage
Loan Seller, the Additional Warranting Party, 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
11.10 Standing Requests for Information
EXHIBIT A-1 Form of Class A-1 Certificate
EXHIBIT A-2 Form of Class A-2 Certificate
EXHIBIT A-3 Form of Class X Certificate
EXHIBIT A-4 Form of Class B Certificate
EXHIBIT A-5 Form of Class C Certificate
EXHIBIT A-6 Form of Class D Certificate
EXHIBIT A-7 Form of Class E Certificate
EXHIBIT A-8 Form of Class F Certificate
EXHIBIT A-9 Form of Class G Certificate
EXHIBIT A-10 Form of Class H Certificate
EXHIBIT A-11 Form of Class J Certificate
EXHIBIT A-12 Form of Class K Certificate
EXHIBIT A-13 Form of Class R-I Certificate
EXHIBIT A-14 Form of Class R-II Certificate
EXHIBIT A-15 Form of Class R-III 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
EXHIBIT G Form of Certificateholder Confirmation Certificate
EXHIBIT H Form of Prospective Purchaser Certificate
SCHEDULE I Mortgage Loan Schedule
SCHEDULE II Sub-Servicing Agreements in Effect as of the Original
Closing Date
SCHEDULE III Schedule of Mortgage Loans Permitting Certain Releases
SCHEDULE IV Schedule of Mortgage Loans Permitting Future Subordinate
Liens on Mortgaged Properties
SCHEDULE V Bank of America Mortgage Loan Exception Schedule
SCHEDULE VI Schedule of Exceptions to Mortgage File Delivery
<PAGE>
This Amended and Restated Pooling and Servicing Agreement (this
"Agreement"), is dated and effective as of November 1, 1998, among NATIONSLINK
FUNDING CORPORATION, as Depositor, NATIONSBANK, N.A., as Mortgage Loan Seller,
BANK OF AMERICA NT&SA, as Additional Warranting Party, MIDLAND LOAN SERVICES,
INC., 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 and restates the Pooling and Servicing Agreement,
dated September 1, 1998, among NationsLink Funding Corporation, as Depositor,
NationsBank N.A., as Mortgage Loan Seller, Bank of America NT&SA, as Additional
Warranting Party, Midland Loan Services, Inc., as Master Servicer, Lennar
Partners, Inc., as Special Servicer, and Norwest Bank Minnesota, National
Association, as Trustee and REMIC Administrator (the "Original Pooling
Agreement"). This Amended and Restated Pooling and Servicing Agreement is being
executed at the direction of Holders of Certificates entitled to 100% of the
Voting Rights allocated to the Class A-1, Class A-2, Class X, Class B, Class C,
Class D, Class E and Class F Certificates as issued under the Original Pooling
Agreement (the "Original Certificates"), and with the agreement of all of the
parties hereto, for the purpose of (i) causing such Classes to be restructured,
including without limitation by setting new pass-through rates with respect
thereto and by providing for the Interest Reserve Account as set forth herein,
(ii) making, in connection with such restructuring, an additional REMIC election
with respect to the Trust Fund and (iii) providing for the book-entry
registration of the newly created Classes of Certificates.
The Depositor issued the Original Certificates on September 25, 1998,
pursuant to the Original Pooling Agreement. Interests in the Trust established
by the Original Pooling Agreement corresponding to the Class A-1, Class A-2,
Class X, Class B, Class C, Class D, Class E and Class F Certificates being
issued under this amended and restated agreement (the "New Certificates") were
issued to the Mortgage Loan Seller in partial consideration for the Mortgage
Loans. Effective on the Sequel Closing Date, the Mortgage Loan Seller will
transfer such interests to the Depositor, and the Depositor will transfer such
interests to the Trustee in exchange for the New Certificates and the Class
R-III Certificates. No changes from the Original Pooling Agreement are made
hereby with respect to the Class G, Class H, Class J and Class K Certificates
(the "Unaffected Certificates") and the Class R-I and Class R-II Certificates
and in this and every other respect, except as expressly amended hereby, the
Original Pooling Agreement continues in full force and effect as amended and
restated hereby. The New Certificates, together with the Unaffected Certificates
and the Residual Certificates, collectively evidence the entire beneficial
ownership interest in the Trust.
It is the intention of the parties, and each of the parties hereto
acknowledges, that this amendment and restatement of the Original Pooling
Agreement shall in no way affect the rights or obligations of a Subservicer
under the Amended and Restated Master Subservicing Agreement for Securitization
Transactions, dated as of March 25, 1998, among NationsBank, N.A., Bankers
Mutual, a division of Franchise Mortgage Acceptance Company (successor in
interest to Bankers Mutual Mortgage, Inc.), Berkshire Mortgage Finance
Corporation, First Security Bank, N.A., L.J. Melody & Company, Midland Loan
Services, Inc. (successor in interest to Midland Loan Services, L.P.), Patrician
Financial Company Limited Partnership and WMF Washington Mortgage Corp.
(successor in interest to Washington Mortgage Financial Group, Ltd.), as
supplemented by Subservicer Addition Agreements dated September 25, 1998
executed by ARCS Commercial Mortgage Co., L.P., a California limited
partnership, and Bank of America NT&SA, and as made applicable to the
securitization transaction contemplated by this Agreement by the related
Confirmation, dated as of September 25, 1998, executed by all such parties.
As provided herein, the Trustee will elect that the Trust Fund be treated
for federal income tax purposes as three separate real estate mortgage
investment conduits ("REMIC I," "REMIC II" and "REMIC III," respectively). The
Class A-1, Class A-2, Class X, Class B, Class C, Class D, Class E and Class F
Certificates constitute "regular interests" in REMIC III, and the Class R-III
Certificates constitute the sole class of "residual interest" in REMIC III for
purposes of the REMIC Provisions. The Class MA-1, Class MA-2, Class MB, Class
MC, Class MD, Class ME, Class MF and Class MX Uncertificated Interests and the
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 created hereunder for purposes of the
REMIC Provisions. The Class LA-1, Class LA-2, Class LB, Class LC, Class LD,
Class LE, Class LF, Class LG, Class LH, Class LJ and Class LK Uncertificated
Interests constitute "regular interests" in REMIC I and the Class R-I
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 Regular
Certificates:
Regular
Certificate Initial Class
Designation Pass-Through Rate Principal Balance
----------- ----------------- -----------------
Class A-1 6.001% per annum $429,503,407
Class A-2 6.476% per annum $676,635,062
Class X Variable(1) N/A(2)
Class B 6.795% per annum (3) $ 79,304,366
Class C 7.042% per annum (3) $ 95,165,239
Class D 7.105% per annum (3) $ 83,269,584
Class E 7.105% per annum (3) $ 35,686,964
Class F 7.105% per annum (3) $ 87,234,802
Class G 5.000% per annum $ 11,895,654
Class H 5.000% per annum $ 31,721,746
Class J 5.000% per annum $ 7,930,436
Class K 5.000% per annum $ 43,617,407
_______________
(1) Calculated in accordance with the definition of "Class Pass-Through Rate".
(2) The Class X Certificates will not have a Class Principal Balance; rather,
such Class of Certificates will accrue interest as provided herein on the
Class X Notional Amount.
(3) The Pass-Through Rates for the Class A, Class B, Class C, Class D, Class E
and Class F Certificates for each Distribution Date shall not exceed the
Adjusted REMIC II Remittance Rate for such Distribution Date.
<PAGE>
The following table sets forth the designation, the initial Uncertificated
Principal Balances and per annum rates of interest for the REMIC I Regular
Interests:
REMIC I
Regular Interest REMIC I Initial Uncertificated
Designation Remittance Rate Principal Balance
----------- --------------- -----------------
Class LA-1 (1) $429,503,407
Class LA-2 (1) $676,635,062
Class LB (1) $ 79,304,366
Class LC (1) $ 95,165,239
Class LD (1) $ 83,269,584
Class LE (1) $ 35,686,964
Class LF (1) $ 87,234,802
Class LG (1) $ 11,895,654
Class LH (1) $ 31,721,746
Class LJ (1) $ 7,930,436
Class LK (1) $ 43,617,407
_______________
(1) The REMIC I Remittance Rate for each Class of REMIC I Regular Interests is
the Weighted Average Adjusted Net Mortgage Rate.
<PAGE>
The following table sets forth the designation, the initial Uncertificated
Principal Balances and per annum rates of interest for the REMIC II
Uncertificated Regular Interests:
REMIC II
Uncertificated
Regular Interest REMIC II Initial Uncertificated
Designation Remittance Rate Principal Balance
----------- --------------- -----------------
Class MA-1 (1) $429,503,407
Class MA-2 (1) $676,635,062
Class MB (1) $ 74,304,366
Class MC (1) $ 95,165,239
Class MD (1) $ 83,269,584
Class ME (1) $ 35,686,964
Class MF (1) $ 87,234,802
Class MX (2) (3)
_______________
(1) The REMIC II Remittance Rate for each Class of REMIC II Uncertificated
Regular Interests (other than the Class MX Uncertificated Interest) is the
Weighted Average Adjusted Net Mortgage Rate.
(2) The Pass-Through Rate for the Class MX Uncertificated Regular Interest is
the Class MX Pass-Through Rate.
(3) The Class MX Uncertificated Regular Interest will not have an
Uncertificated Principal Balance; rather, such Class of REMIC II
Uncertificated Regular Interests will receive interest as provided herein
on the Class MX Notional Amount.
The Class R-I, Class R-II and Class R-III 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 Additional Warranting Party, 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 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 Regular Certificates outstanding immediately prior
to such Distribution Date. The Accrued Certificate Interest in respect of any
Class of Regular Certificates for any Distribution Date shall be deemed to have
accrued during the applicable Interest Accrual Period.
"Actual/360 Basis": As defined in clause (iii) of the definition of
"Mortgage Loan Schedule".
"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.
"Additional Warranting Party": Bank of America.
"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. Such rate shall be calculated by multiplying (i) the Net
Mortgage Rate by (ii) the actual number of days of accrued interest for the
related period for such Mortgage Loan, divided by 30.
"Adjusted REMIC II Remittance Rate": The Weighted Average Adjusted Net
Mortgage Rate, adjusted by recomputing the Adjusted Net Mortgage Rate by
excluding Withheld Amounts for any December (if applicable) and January, and
including such Withheld Amounts for the consecutive February, in computing the
Net Mortgage Rate for the affected Mortgage Loan.
"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, REMIC II and REMIC
III, either (i) the endangerment of the status of such REMIC as a REMIC or (ii),
except as permitted by Section 3.17(a), the imposition of a tax upon such REMIC
or any of its assets or transactions (including, without limitation, the tax on
prohibited transactions as defined in Section 860F(a)(2) of the Code and the tax
on certain contributions set forth in Section 860G(d) of the Code).
"Affiliate": With respect to any specified Person, any other Person
controlling or controlled by or under common control with such specified Person.
For the purposes of this definition, "control" when used with respect to any
specified Person means the power to direct the management and policies of such
Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise and the terms "controlling" and
"controlled" have the meanings correlative to the foregoing.
"Agreement": This Pooling and Servicing Agreement, together with all
amendments hereof and supplements hereto.
"Annuity Factor": As defined in Section 4.01(c).
"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 60-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(c).
"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, any payments made by the Master Servicer
to cover Prepayment Interest Shortfalls incurred during the related Collection
Period, and any interest or other income earned on funds in the Interest Reserve
Account, 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.
"Available REMIC III Distribution Amount": With respect to any Distribution
Date, the Available Distribution Amount plus (a) for the Distribution Date
occurring in the applicable March, the related Withheld Amounts remitted to the
REMIC III Distribution Account pursuant to Section 4.05, minus (b) with respect
to all Mortgage Loans accruing interest on an Actual/360 Basis and any
Distribution Date in each applicable February and in any applicable January
which is in a year which is not a leap year, an amount equal to the related
Withheld Amounts pursuant to Section 4.05.
"Balloon Mortgage Loan": Any Mortgage Loan that by its original terms or by
virtue of any modification entered into as of the Original 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.
"Bank of America": Bank of America NT&SA, or its successor in interest.
"Bank of America Mortgage Loan": Any of the Mortgage Loans acquired by
NationsBank pursuant to the Bank of America/NationsBank Mortgage Loan Purchase
and Sale Agreement. The Bank of America Mortgage Loans are identified as such on
the Mortgage Loan Schedule under the heading "Loan Seller".
"Bank of America/NationsBank Mortgage Loan Purchase and Sale Agreement":
The Mortgage Loan Purchase Agreement, dated as of September 25, 1998, between
Bank of America and NationsBank.
"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 November 5, 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 1998-2 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, Inc., as Master Servicer, in trust for the registered holders of
NationsLink Funding Corporation, Commercial Mortgage Pass-Through Certificates,
Series 1998-2, Certificate Account".
"Certificate Factor": With respect to any Class of Regular Certificates, as
of any date of determination, a fraction, expressed as a decimal carried to
eight places, the numerator of which is the then related Class Principal Balance
or Class Notional Amount, as the case may be, and the denominator of which is
the related Initial Class Principal Balance or Initial Class Notional Amount, as
the case may be.
"Certificate Notional Amount": With respect to any Class X Certificate, the
hypothetical or notional principal amount on which such Certificate accrues
interest, which, as of any date of determination, is equal to the product of (a)
the Percentage Interest evidenced by such Certificate, multiplied by (b) the
then Class X 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 Additional Warranting Party, 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 Additional Warranting Party, 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, REMIC I Regular Interests
or REMIC II Uncertificated 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-1
attached hereto, and evidencing a "regular interest" in REMIC III for purposes
of the REMIC Provisions.
"Class A-1 Component": With respect to the Class X Certificates, at any
date of determination, that portion of the Class X Notional Amount equal to the
Certificate Principal Balance of the Class A-1 Certificates.
"Class A-1 Component Pass-Through Rate": A per annum rate equal to the
Adjusted REMIC II Remittance Rate minus the Class A-1 Pass-Through Rate.
"Class A-1 Pass-Through Rate": A per annum rate equal to 6.001%.
"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 III for purposes
of the REMIC Provisions.
"Class A-2 Component": With respect to the Class X Certificates at any date
of determination, that portion of the Class X Notional Amount equal to the
Certificate Principal Balance of the Class A-2 Certificates.
"Class A-2 Component Pass-Through Rate": A per annum rate equal to the
Adjusted REMIC II Remittance Rate minus the Class A-2 Pass-Through Rate.
"Class A-2 Pass-Through Rate": A per annum rate equal to 6.476%.
"Class B Certificate": Any one of the Certificates with a "Class B"
designation on the face thereof, substantially in the form of Exhibit A-4
attached hereto, and evidencing a "regular interest" in REMIC III for purposes
of the REMIC Provisions.
"Class B Component": With respect to the Class X Certificates, at any date
of determination, that portion of the Class X Notional Amount equal to the
Certificate Principal Balance of the Class B Certificates.
"Class B Component Pass-Through Rate": A per annum rate equal to the
Adjusted REMIC II Remittance Rate minus the Class B Pass-Through Rate.
"Class B Pass-Through Rate": A per annum rate equal to 6.795%; provided,
however, such rate shall not exceed the Adjusted REMIC II Remittance Rate for
the related Distribution Date.
"Class C Certificate": Any one of the Certificates with a "Class C"
designation on the face thereof, substantially in the form of Exhibit A-5
attached hereto, and evidencing a "regular interest" in REMIC III for purposes
of the REMIC Provisions.
"Class C Component": With respect to the Class X Certificates, at any date
of determination, that portion of the Class X Notional Amount equal to the
Certificate Principal Balance of the Class C Certificates.
"Class C Component Pass-Through Rate": A per annum rate equal to the
Adjusted REMIC II Remittance Rate minus the Class C Pass-Through Rate.
"Class C Pass-Through Rate": A per annum rate equal to 7.042%; provided,
however, such rate shall not exceed the Adjusted REMIC II Remittance Rate for
the related Distribution Date.
"Class D Certificate": Any one of the Certificates with a "Class D"
designation on the face thereof, substantially in the form of Exhibit A-6
attached hereto, and evidencing a "regular interest" in REMIC III for purposes
of the REMIC Provisions.
"Class D Component": With respect to the Class X Certificates, at any date
of determination, that portion of the Class X Notional Amount equal to the
Certificate Principal Balance of the Class D Certificates.
"Class D Component Pass-Through Rate": A per annum rate equal to the
Adjusted REMIC II Remittance Rate minus the Class D Pass-Through Rate.
"Class D Pass-Through Rate": A per annum rate equal to 7.105%; provided,
however, such rate shall not exceed the Adjusted REMIC II Remittance Rate for
the related Distribution Date.
"Class E Certificate": Any one of the Certificates with a "Class E"
designation on the face thereof, substantially in the form of Exhibit A-7
attached hereto, and evidencing a "regular interest" in REMIC III for purposes
of the REMIC Provisions.
"Class E Component": With respect to the Class X Certificates, at any date
of determination, that portion of the Class X Notional Amount equal to the
Certificate Principal Balance of the Class E Certificates.
"Class E Component Pass-Through Rate": A per annum rate equal to the
Adjusted REMIC II Remittance Rate minus the Class E Pass-Through Rate.
"Class E Pass-Through Rate": A per annum rate equal to 7.105%; provided,
however, such rate shall not exceed the Adjusted REMIC II Remittance Rate for
the related Distribution Date.
"Class F Certificate": Any one of the Certificates with a "Class F"
designation on the face thereof, substantially in the form of Exhibit A-8
attached hereto, and evidencing a "regular interest" in REMIC III for purposes
of the REMIC Provisions.
"Class F Component": With respect to the Class X Certificates, at any date
of determination, that portion of the Class X Notional Amount equal to the
Certificate Principal Balance of the Class F Certificates.
"Class F Component Pass-Through Rate": A per annum rate equal to the
Adjusted REMIC II Remittance Rate minus the Class F Pass-Through Rate.
"Class F Pass-Through Rate": A per annum rate equal to 7.105% provided,
however, such rate shall not exceed the Adjusted REMIC II Remittance Rate for
the related Distribution Date.
"Class G Certificate": Any one of the Certificates with a "Class G"
designation on the face thereof, substantially in the form of Exhibit A-9
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class G-II Component": With respect to the Class MX Uncertificated
Interest, at any date of determination, that portion of the Class MX Notional
Amount equal to the Certificate Principal Balance of the Class G Certificates.
"Class G-II Component Pass-Through Rate": A per annum rate equal to the
Weighted Average Adjusted Net Mortgage Rate minus the Class G Pass-Through Rate.
"Class G-III Component": With respect to the Class X Certificates, at any
date of determination, that portion of the Class X Notional Amount equal to the
Certificate Principal Balance of the Class G Certificates.
"Class G-III Component Pass-Through Rate": A per annum rate equal to the
Adjusted REMIC II Remittance Rate minus the Class G Pass-Through Rate.
"Class G Pass-Through Rate": A per annum rate equal to 5.000%.
"Class H Certificate": Any one of the Certificates with a "Class H"
designation on the face thereof, substantially in the form of Exhibit A-10
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class H-II Component": With respect to the Class MX Uncertificated
Interest, at any date of determination, that portion of the Class MX Notional
Amount equal to the Certificate Principal Balance of the Class H Certificates.
"Class H-II Component Pass-Through Rate": A per annum rate equal to the
Weighted Average Adjusted Net Mortgage Rate minus the Class H Pass-Through Rate.
"Class H-III Component": With respect to the Class X Certificates, at any
date of determination, that portion of the Class X Notional Amount equal to the
Certificate Principal Balance of the Class H Certificates.
"Class H-III Component Pass-Through Rate": A per annum rate equal to the
Adjusted REMIC II Remittance Rate minus the Class H Pass-Through Rate.
"Class H Pass-Through Rate": A per annum rate equal to 5.000%.
"Class J Certificate": Any one of the Certificates with a "Class J"
designation on the face thereof, substantially in the form of Exhibit A-11
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class J-II Component": With respect to the Class MX Uncertificated
Interest at any date of determination, that portion of the Class MX Notional
Amount equal to the Certificate Principal Balance of the Class J Certificates.
"Class J-II Component Pass-Through Rate": A per annum rate equal to the
Weighted Average Adjusted Net Mortgage Rate minus the Class J Pass-Through Rate.
"Class J-III Component": With respect to the Class X Certificates, at any
date of determination, that portion of the Class X Notional Amount equal to the
Certificate Principal Balance of the Class J Certificates.
"Class J-III Component Pass-Through Rate": A per annum rate equal to the
Adjusted REMIC II Remittance Rate minus the Class J Pass-Through Rate.
"Class J Pass-Through Rate": A per annum rate equal to 5.000%.
"Class K Certificate": Any one of the Certificates with a "Class K"
designation on the face thereof, substantially in the form of Exhibit A-12
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class K-II Component": With respect to the Class MX Uncertificated
Interest, at any date of determination, that portion of the Class MX Notional
Amount equal to the Certificate Principal Balance of the Class K Certificates.
"Class K-II Component Pass-Through Rate": A per annum rate equal to the
Weighted Average Adjusted Net Mortgage Rate minus the Class K Pass-Through Rate.
"Class K-III Component": With respect to the Class X Certificates, at any
date of determination, that portion of the Class X Notional Amount equal to the
Certificate Principal Balance of the Class K Certificates.
"Class K-III Component Pass-Through Rate": A per annum rate equal to the
Adjusted REMIC II Remittance Rate minus the Class K Pass-Through Rate.
"Class K Pass-Through Rate": A per annum rate equal to 5.000%.
"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 the Preliminary Statement
hereto.
"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 the Preliminary Statement
hereto.
"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 the Preliminary Statement
hereto.
"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 the Preliminary Statement
hereto.
"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 the Preliminary Statement
hereto.
"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 the Preliminary Statement
hereto.
"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 the Preliminary Statement
hereto.
"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 the Preliminary Statement
hereto.
"Class LH 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 the Preliminary Statement
hereto.
"Class LJ 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 the Preliminary Statement
hereto.
"Class LK 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 the Preliminary Statement
hereto.
"Class MA-1 Uncertificated Interest": A regular interest in REMIC II which
is held as an asset of REMIC III and having the initial Uncertificated Principal
Balance and per annum rate of interest set forth in the Preliminary Statement
hereto.
"Class MA-2 Uncertificated Interest": A regular interest in REMIC II which
is held as an asset of REMIC III and having the initial Uncertificated Principal
Balance and per annum rate of interest set forth in the Preliminary Statement
hereto.
"Class MB Uncertificated Interest": A regular interest in REMIC II which is
held as an asset of REMIC III and having the initial Uncertificated Principal
Balance and per annum rate of interest set forth in the Preliminary Statement
hereto.
"Class MC Uncertificated Interest": A regular interest in REMIC II which is
held as an asset of REMIC III and having the initial Uncertificated Principal
Balance and per annum rate of interest set forth in the Preliminary Statement
hereto.
"Class MD Uncertificated Interest": A regular interest in REMIC II which is
held as an asset of REMIC III and having the initial Uncertificated Principal
Balance and per annum rate of interest set forth in the Preliminary Statement
hereto.
"Class ME Uncertificated Interest": A regular interest in REMIC II which is
held as an asset of REMIC III and having the initial Uncertificated Principal
Balance and per annum rate of interest set forth in the Preliminary Statement
hereto.
"Class MF Uncertificated Interest": A regular interest in REMIC II which is
held as an asset of REMIC III and having the initial Uncertificated Principal
Balance and per annum rate of interest set forth in the Preliminary Statement
hereto.
"Class MX Notional Amount": The aggregate hypothetical or notional
principal amount on which the Class MX Uncertificated Interest collectively
accrues interest, which amount is equal to the aggregate of the Certificate
Principal Balances of the Class G, Class H, Class J and Class K Certificates as
of the preceding Distribution Date (after giving effect to the distributions of
principal on such Distribution Date or, in the case of the first Distribution
Date, as of the Original Closing Date).
"Class MX Pass-Through Rate": With respect to any Distribution Date, a rate
per annum, rounded to eight decimal places, equal to the weighted average of the
Component Pass-Through Rates on the Class G-II Component, Class H-II Component,
Class J-II Component and Class K-II Component, weighted on the basis of their
respective portions of the Class MX Notional Amount.
"Class MX Uncertificated Interest": A regular interest in REMIC II which is
held as an asset of REMIC III and having an initial Class Notional Amount equal
to the Class MX Notional Amount and per annum rate of interest equal to the
Class MX Pass-Through Rate.
"Class Notional Amount": The Class MX Notional Amount or the Class X
Notional Amount.
"Class Principal Balance": The aggregate principal amount of any Class of
Sequential Pay Certificates outstanding as of any date of determination. As of
the Original 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(c)
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-13
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-14
attached hereto, and evidencing the sole Class of "residual interest" in REMIC
II for purposes of the REMIC Provisions.
"Class R-III Certificate": Any one of the Certificates with a "Class R-III"
designation on the face thereof, substantially in the form of Exhibit A-15
attached hereto, and evidencing the sole Class of "residual interest" in REMIC
III for purposes of the REMIC Provisions.
"Class X Certificate": Any one of the Certificates with a "Class X"
designation on the face thereof, substantially in the form of Exhibit A-3, and
evidencing a "regular interest" in REMIC III for purposes of the REMIC
Provisions.
"Class X Notional Amount": The aggregate hypothetical or notional principal
amount on which the Class X Certificates collectively accrue interest, which
amount is equal to the aggregate of (i) the Uncertificated Principal Balances of
the Class MA-1, Class MA-2, Class MB, Class MC, Class MD, Class ME, and Class MF
Uncertificated Interests, corresponding to the Certificate Principal Balances of
the Class A-1, Class A-2, Class B, Class C, Class D, Class E, and Class F
Certificates, respectively, and (ii) the Certificate Principal Balances of the
Class G, Class H, Class J and Class K Certificates, in each case, as of the
preceding Distribution Date (after giving effect to the distributions of
principal on such Distribution Date) or, in the case of the first Distribution
Date, as of the Original Closing Date.
"Class X Pass-Through Rate": With respect to any Distribution Date, a rate
per annum, rounded to eight decimal places, equal to the weighted average of the
Component Pass-Through Rates on the Class A-1 Component, the Class A-2
Component, the Class B Component, the Class C Component, the Class D Component,
the Class E Component, the Class F Component, the Class G-III Component, the
Class H-III Component, the Class J-III Component and the Class K-III Component,
weighted on the basis of their respective portions of the Class X Notional
Amount.
"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.
"Component": Any of the Class A-1 Component, Class A-2 Component, Class B
Component, Class C Component, Class D Component, Class E Component, Class F
Component, Class G Component, Class H Component, Class J Component and Class K
Component.
"Component Pass-Through Rate": Any of the Class A-1 Component Pass-Through
Rate, the Class A-2 Component Pass-Through Rate, the Class B Component
Pass-Through Rate, the Class C Component Pass-Through Rate, the Class D
Component Pass-Through Rate, the Class E Component Pass-Through Rate, the Class
F Component Pass-Through Rate, the Class G-II Component Pass-Through Rate, the
Class H-II Component Pass-Through Rate, the Class J-II Component Pass-Through
Rate, the Class K-II Component Pass-Through Rate, the Class G-III Component
Pass-Through Rate, the Class H-III Component Pass-Through Rate, the Class J-III
Component Pass-Through Rate and the Class K-III Component Pass-Through Rate.
"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 25% of the Initial Class
Principal Balance thereof (or, if no Class of Sequential Pay Certificates has a
Class Principal Balance at least equal to 25% of the Initial Class Principal
Balance thereof, then the "Controlling Class" shall be the outstanding Class of
Sequential Pay Certificates with the then largest outstanding Class Principal
Balance).
"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", "Corresponding REMIC II Uncertificated Regular
Interest" and "Corresponding REMIC I Regular Interest": For any Class of REMIC
II Regular Interests, the related Class of REMIC III Regular Certificates set
forth below and for any Class of REMIC III Regular Certificates, the related
Class of REMIC II Regular Interests set forth below:
Corresponding REMIC I Corresponding REMIC II Corresponding
Regular Interest Uncertificated Regular Interest Certificate
--------------------- ------------------------------- -------------
Class LA-1 Uncertificated Class MA-1 Uncertificated Class A-1
Interest Interest Certificate
Class LA-2 Uncertificated Class MA-2 Uncertificated Class A-2
Interest Interest Certificate
Class LB Uncertificated Class MB Uncertificated Class B Certificate
Interest Interest
Class LC Uncertificated Class MC Uncertificated Class C Certificate
Interest Interest
Class LD Uncertificated Class MD Uncertificated Class D Certificate
Interest Interest
Class LE Uncertificated Class ME Uncertificated Class E Certificate
Interest Interest
Class LF Uncertificated Class MF Uncertificated Class F Certificate
Interest Interest
Class LG Uncertificated Class G Certificate
Interest
Class LH Uncertificated Class H Certificate
Interest
Class LJ Uncertificated Class J Certificate
Interest
Class LK Uncertificated Class K Certificate
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, the Additional Warranting
Party or an Affiliate of any of them.
"Cut-off Date": September 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.
"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 Original Closing Date) or the Master
Servicer or Special Servicer (following the Original 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 September 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).
"Designated Interest Reserve Mortgage Loans": For purposes of determining
whether an Interest Reserve Event has occurred in the applicable year, each
Mortgage Loan for which, as of the Determination Date occurring in January
(other than a leap year) of any year (a) the Master Servicer or Special Servicer
has (i) received a notice of Principal Prepayment, (ii) sent a notice of
acceleration of the Mortgage Loan, (iii) received a notice from a Mortgagor that
such Mortgagor intends to deliver the deed to the Mortgaged Property in lieu of
foreclosure or trustee's sale, or (iv) received a notice of the Mortgagor's
bankruptcy, or (b) a Balloon Payment is due February 1 of the applicable year.
"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 Non-U.S. Person": With respect to a Class R-I, Class R-II or
Class R-III Certificate, any Non-U.S. Person or agent thereof other than (i) a
Non-U.S. Person that holds the Class R-I, Class R-II or Class R-III Certificate
in connection with the conduct of a trade or business within the United States
and has furnished the transferor and the Certificate Registrar with an effective
IRS Form 4224 or (ii) a Non-U.S. Person that has delivered to both the
transferor and the Certificate Registrar an opinion of a nationally recognized
tax counsel to the effect that the transfer of the Class R-I, Class R-II or
Class R-III Certificate to it is in accordance with the requirements of the Code
and the regulations promulgated thereunder and that such transfer of the Class
R-I, Class R-II or Class R-III Certificate will not be disregarded for federal
income tax purposes.
"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 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 Regular Certificates on such Distribution Date pro rata
among the Classes of 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
1998-2, 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 October
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 and "AA-" by S&P (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 and "A-1" by S&P (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 (predecessor
in interest to BankAmerica Corporation), (ii) any Person directly or indirectly,
through one or more intermediaries, controlling, controlled by or under common
control with BankAmerica Corporation and (iii) any member of a syndicate or
selling group of which BankAmerica Corporation 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 the Additional Warranting Party
or an Affiliate of either 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.
"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 and any estoppel agreements
entered into by and between lenders and ground lessees and/or ground lessors
and/or mortgagees of the ground leasehold estate.
"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 Additional Warranting Party, 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 Additional Warranting Party, 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 Additional
Warranting Party, 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 Additional Warranting Party, 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 Additional Warranting Party, 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 Certificates,
the initial Class X Notional Amount thereof as of the Original Closing Date
equal to $1,586,087,324.
"Initial Class Principal Balance": With respect to any Class of Sequential
Pay Certificates, the initial Class Principal Balance thereof as of the Original
Closing Date, in each case as set forth below:
Initial Class
Class Principal Balance
----- -----------------
Class A-1 $419,916,619
Class A-2 $690,344,507
Class B $ 79,304,366
Class C $ 95,165,239
Class D $ 83,269,584
Class E $ 35,686,964
Class F $ 87,234,802
Class G $ 11,895,654
Class H $ 31,721,746
Class J $ 7,930,436
Class K $ 43,617,407
"Initial Pool Balance": The aggregate Cut-off Date Balance of all the
Mortgage Loans included in the Trust Fund as of the Original 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,
each REMIC II Uncertificated Regular Interest and each Class of Regular
Certificates, for any Distribution Date, the calendar month immediately
preceding the month in which such Distribution Date occurs.
"Interest Reserve Account": The segregated account or accounts created and
maintained by the Trustee pursuant to Section 4.05 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
1998-2, Interest Reserve Account".
"Interest Reserve Event" An event which will occur if, on the Master
Servicer Remittance Date in any February, and in any January in a year that is
not a leap year, the Weighted Average Adjusted Net Mortgage Rate anticipated for
February of the same year would be less than the Class A-2 Pass-Through Rate.
Such anticipated Weighted Average Adjusted Net Mortgage Rate for February, to
the extent calculated in January, shall be calculated as of the January Master
Servicer Remittance Date and shall be determined assuming that there will be no
payments of principal prior to the following March 1 other than payments of
principal on Mortgage Loans determined as of the preceding Determination Date to
be Designated Interest Reserve Mortgage Loans, to the extent any such Mortgage
Loans have Net Mortgage Rates for February in excess of the Class A-2
Pass-Through Rate (computed without regard to the addition of Withheld Amounts).
It shall be further assumed for purposes of this definition that Designated
Interest Revenue Mortgage Loans do prepay during the calendar month in which
such Determination Date occurs, and that no other principal payments (including
without limitation scheduled principal payments or Principal Prepayments) are
received. Such anticipated Weighted Average Adjusted Net Mortgage Rate for
February, to the extent calculated in February, shall be calculated assuming no
Principal Prepayments after the Determination Date.
"Interested Person": The Depositor, the Mortgage Loan Seller, the
Additional Warranting Party, the Master Servicer, any Subservicer, the Special
Servicer, any Holder of a Certificate, or any Affiliate of any such Person.
"International Home Furnishing Center Loan": As defined in Section
2.05(c)(xiv).
"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 the Additional Warranting
Party or any Affiliate of either of them 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 the Additional Warranting Party
or any Affiliate of either of them pursuant to Section 2.03 within 120 days of
the Mortgage Loan Seller's or the Additional Warranting Party's, as the case may
be, 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 the Additional Warranting Party or any Affiliate
of either of them 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(c).
"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.
"Market Place at Webb Chapel Mortgage Loan": As defined in Section
2.05(c)(xlix)(E).
"Master Servicer": Midland Loan Services, Inc., 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 0.25 basis points (0.0025% per
annum) less than the Administrative Fee Rate specified for such Mortgage Loan in
the Mortgage Loan Schedule.
"Midland": Midland Loan Services, Inc., 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 1998-2, without recourse" or, in the case of
the Mortgage Loan secured by the Mortgaged Property known as
"Riverside Tower," a lost note affidavit;
(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
(or, if a title insurance policy has not yet been issued, a
commitment for title insurance "marked-up" at the closing of such
Mortgage Loan or other binding commitment to issue title
insurance), 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 or the Additional Warranting Party, as
applicable, at the time the Mortgage Files were delivered to the
Trustee;
(xi) (A) file 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 or
the Additional Warranting Party, as applicable, 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 or the Additional Warranting Party, as applicable, 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 Schedule": The list of Mortgage Loans transferred on the
Original 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) (a) the Mortgage Rate in effect as of the Cut-off Date and (b)
whether the Mortgage Loan accrues interest on the basis of the
actual number of days elapsed in the relevant month of accrual
and a 360-day year (an "Actual/360 Basis") or on the basis of a
360-day year consisting of twelve 30-day months (a "30/360
Basis");
(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);
(xvi) the original amortization term; and
(xvii) whether the Mortgage Loan is a NationsBank Mortgage Loan or a
Bank of America Mortgage Loan.
The Mortgage Loan Schedule shall also set forth the aggregate Cut-off Date
Balance for all of the Mortgage Loans. Such list may be in the form of more than
one list, collectively setting forth all of the information required.
"Mortgage Loan Seller": 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 Original 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; provided, however, that for purposes of computing the
Adjusted REMIC II Remittance Rate with respect to all Mortgage Loans that accrue
interest on an Actual/360 Basis, (i) the Mortgage Rate for each one-month period
preceding the Due Dates in January and February in any year which is not a leap
year and in February in any year which is a leap year, shall be determined net
of any related Withheld Amounts and (ii) the Mortgage Rate for the one-month
period preceding the Due Date in March shall be determined taking into account
the addition of any such related Withheld Amounts.
"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.
"Multifamily Loan": Each Mortgage Loan designated as a "Multifamily Loan"
on the Mortgage Loan Schedule.
"NationsBank": NationsBank, N.A., or its successor in interest.
"NationsBank Mortgage Loan": Any of the Mortgage Loans, other than the Bank
of America Mortgage Loans. NationsBank Mortgage Loans are identified as such on
the Mortgage Loan Schedule under the heading "Loan Seller".
"NationsBank/NationsLink Mortgage Loan Purchase and Sale Agreement": The
Mortgage Loan Purchase and Sale Agreement, dated as of September 25, 1998,
between NationsBank and the Depositor.
"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. For purposes of
calculating the Pass-Through Rate for each Class of Regular Certificates from
time to time, the Net Mortgage Rate for any Mortgage Loan will be calculated
without regard to any modification, waiver or amendment of the terms of such
Mortgage Loan subsequent to the Original Closing Date.
"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 Certificates": As defined in the Preliminary Statement.
"New Lease": Any lease of REO Property entered into at the direction of the
Special Servicer on behalf of the Trust, including any lease renewed, modified
or extended on behalf of the Trust, if the Trust has the right to renegotiate
the terms of such lease.
"Nonrecoverable Advance": Any Nonrecoverable P&I Advance or Nonrecoverable
Servicing Advance.
"Nonrecoverable P&I Advance": Any P&I Advance 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 Certificate.
"Non-U.S. Person": Any person other than a U.S. 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 Additional
Warranting Party, the Trustee, the REMIC Administrator, the Master Servicer or
the Special Servicer), which written opinion is acceptable and delivered to the
addressee(s).
"Original Certificates": As defined in the Preliminary Statement.
"Original Closing Date": September 25, 1998.
"Original Pooling 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 rate per annum specified as such in
respect of such Class of Certificates in the Preliminary Statement hereto. With
respect to the Class X Certificates, for any Distribution Date, the Class X
Pass-Through Rate. With respect to the Class MX Uncertificated Interest, for any
Distribution Date, the Class MX 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 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 Original
Closing Date (in the case of the Class G, Class H, Class J and Class K
Certificates) or the Sequel Closing Date (in the case of the Class A-1, Class
A-2, Class B, Class C, Class D, Class E and Class F Certificates) 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 and "AAA" by S&P;
(iii) unsecured certificates of deposit, time deposits and bankers'
acceptances (having original maturities of not more than 365 days) of any
bank or trust company organized under the laws of the United States or any
state, provided that the short-term unsecured debt obligations of such bank
or trust company are rated no less than "P-1" by Moody's and "A-1+" by S&P;
(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 and "A-1+" by S&P;
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; and provided, further, that no investment may
have a rating from S&P with an "r" highlighter.
"Permitted Transferee ": Any Transferee of a Residual Certificate other
than either a Disqualified Organization or a Disqualified Non-U.S. 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" or, in the case
of certain Mortgage Loans having an initial principal balance under $1,000,000,
a transaction screen, 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, the REMIC II Uncertificated
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 Original 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 Original 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 form of prospectus supplement dated
November 5, 1998, relating to the Class A-1, Class A-2, Class X, Class B, Class
C, Class D and Class E 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) 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) 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(c).
"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 Moody's and S&P.
"Rated Final Distribution Date": As to each Class of Certificates, August
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": Any Certificate that has been registered under
the Securities Act.
"Regular Certificates": Any of the Class A-1, Class A-2, Class X, Class B,
Class C, Class D, Class E, Class F, Class G, Class H, Class J and Class K
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(c).
"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 and the Additional Warranting Party; (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)(i).
"REMIC I Regular Interests": Any of the Class LA-1, Class LA-2, Class LB,
Class LC, Class LD, Class LE, Class LF, Class LG, Class LH, Class LJ and Class
LK Uncertificated Interests.
"REMIC I Remittance Rate": With respect to any REMIC I Regular Interest,
the Weighted Average Adjusted Net Mortgage Rate.
"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 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 1998-2, REMIC
II Distribution Account" and which account shall be an Eligible Account.
"REMIC II Distribution Amount": As defined in Section 4.01(a)(i).
"REMIC II Regular Interests": Prior to the Sequel Closing Date, the
Original Certificates and the Unaffected Certificates. On and after the Sequel
Closing Date, the REMIC II Uncertificated Regular Interests and the Unaffected
Certificates.
"REMIC II Uncertificated Regular Interests": Any of the Class MA-1, Class
MA-2, Class MB, Class MC, Class MD, Class ME, Class MF and Class MX
Uncertificated Interests.
"REMIC II Remittance Rate": With respect to any REMIC II Uncertificated
Regular Interest (other than the Class MX Uncertificated Interest), the Weighted
Average Adjusted Net Mortgage Rate. With respect to the Class MX Uncertificated
Interest, the Class MX Pass-Through Rate.
"REMIC III": A segregated pool of assets subject hereto and to be
administered hereunder, and consisting of all of the REMIC II Uncertificated
Regular Interests, amounts distributed thereon as from time to time are held in
the REMIC III Distribution Account and the Interest Reserve Account.
"REMIC III Certificate": Any New Certificate or Class R-III Certificate.
"REMIC III 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 1998-2, REMIC
III Distribution Account" and which account shall be an Eligible Account.
"REMIC III Regular Certificate": Any REMIC III Certificate, other than a
Class R-III 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, which income, subject
to the terms and conditions of that Section of the Code in its present form,
does not include:
(i) except as provided in Section 856(d)(4) or (6) of the Code, any
amount received or accrued, directly or indirectly, with respect
to such REO Property, if the determination of such amount depends
in whole or in part on the income or profits derived by any
Person from such property (unless such amount is a fixed
percentage or percentages of receipts or sales and otherwise
constitutes Rents from Real Property);
(ii) any amount received or accrued, directly or indirectly, from any
Person if the Trust Fund owns directly or indirectly (including
by attribution) a ten percent or greater interest in such Person
determined in accordance with Sections 856(d)(2)(B) and (d)(5) of
the Code;
(iii) any amount received or accrued, directly or indirectly, with
respect to such REO Property if any Person Directly Operates such
REO Property;
(iv) any amount charged for services that are not customarily
furnished in connection with the rental of property to tenants in
buildings of a similar class in the same geographic market as
such REO Property within the meaning of Treasury Regulations
Section 1.856-4(b)(1) (whether or not such charges are separately
stated); and
(v) rent attributable to personal property unless such personal
property is leased under, or in connection with, the lease of
such REO Property and, for any taxable year of the Trust Fund,
such rent is no greater than 15 percent of the total rent
received or accrued under, or in connection with, the lease.
"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 1998-2, 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).
"Representing Party": As defined in Section 2.05(c).
"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 (one of which,
except with respect to a Sub-Servicer, must be an S&P rating) 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), Duff & Phelps Credit Rating
Co. ("A" or better), Fitch IBCA, Inc. ("A" or better), S&P ("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, Class R-II or Class R-III
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.
"Responsible Party": With respect to any Document Defect or alleged
Document Defect or any breach or alleged breach of a representation or warranty
set forth in Section 2.05(c), either: (i) the Mortgage Loan Seller, if such
Document Defect or alleged Document Defect relates to a NationsBank Mortgage
Loan or if such breach or alleged breach is of a representation or warranty as
to which the Mortgage Loan Seller is the Representing Party; or (ii) the
Additional Warranting Party if such Document Defect or alleged Document Defect
relates to a Bank of America Mortgage Loan or if such breach or alleged breach
is of a representation or warranty as to which the Additional Warranting Party
is the Representing Party.
"S&P": Standard & Poor's Ratings Services, a division of the McGraw-Hill
Companies, Inc. or its successor in interest. If neither such rating agency nor
any successor remains in existence, "S&P" 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 Standard & Poor's Ratings Services, a division of the
McGraw-Hill Companies, Inc. herein referenced shall be deemed to refer to the
equivalent ratings of the party so designated.
"Securities Act": The Securities Act of 1933, as amended.
"Security Agreement": With respect to any Mortgage Loan, any security
agreement, chattel mortgage or similar document or instrument, whether contained
in the related Mortgage or executed separately, creating in favor of the holder
of such Mortgage a security interest in the personal property constituting
security for repayment of such Mortgage Loan.
"Senior Certificate": Any Class A-1, Class A-2 or Class X Certificate.
"Senior Principal Distribution Cross-Over Date": The first Distribution
Date as of which the aggregate Class Principal Balance of the Class A-1 and
Class A-2 Certificates outstanding immediately prior to such Distribution Date
exceeds the sum of (a) the aggregate Stated Principal Balance of the Mortgage
Pool that will be outstanding immediately following such Distribution Date, plus
(b) the lesser of (i) the Principal Distribution Amount for such 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.
"Sequel Closing Date": November 19, 1998.
"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 herein 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 Original 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;
(vi) any credit that it has extended to any Mortgagor (e.g. partnership debt)
and (vii) the servicing of any other mortgage loans by the Master Servicer or
the Special Servicer.
"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 Regular Certificates evidencing a $1,000 denomination or, in the case
of a Class X Certificate, a 100% Percentage Interest.
"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, REMIC II and REMIC III, the
day designated as such for such REMIC 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 Original 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, REMIC II and REMIC
III, the Person designated as the "tax matters person" of such REMIC in the
manner provided under Treasury Regulations Section 1.860F-4(d) and Treasury
Regulations Section 301.6231(a)(7)-1. The "Tax Matters Person" for each of REMIC
I, REMIC II and REMIC III 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, REMIC II and REMIC III due to its classification
as a REMIC under the REMIC Provisions, together with any and all other
information, reports or returns that may be required to be furnished to the
Certificateholders or filed with the Internal Revenue Service or any other
governmental taxing authority under any applicable provisions of federal or
Applicable State Law.
"Termination Strip": As defined in Section 3.22(d).
"Transfer": Any direct or indirect transfer, sale, pledge, hypothecation,
or other form of assignment of any Ownership Interest in a Certificate.
"Transfer Affidavit and Agreement": As defined in Section 5.02(d)(i)(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 pursuant to the Original Pooling
Agreement (as amended and restated hereby).
"Trust Fund": Collectively, all of the assets of REMIC I, REMIC II and
REMIC III.
"Trust REMICs": REMIC I, REMIC II and REMIC III.
"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, as applicable, a 360-day year consisting of
twelve 30-day months or the actual number of days elapsed during each calendar
month in a 360-day year) and accrued on the Stated Principal Balance of such
Mortgage Loan or REO Loan, as the case may be, immediately prior to such
Distribution Date for the most recently ended calendar month.
"Trustee Fee Rate": A rate of .0025% 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.
"Unaffected Certificates": As defined in the Preliminary Statement.
"Uncertificated Accrued Interest": With respect to any REMIC I Regular
Interest, for any Distribution Date, one month's interest 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. With respect to any REMIC II Uncertificated Regular
Interest, for any Distribution Date, one month's interest at the REMIC II
Remittance Rate applicable to such REMIC II Uncertificated Regular Interest for
such Distribution Date, accrued on the Uncertificated Principal Balance or the
Class MX Notional Amount, as applicable, of such REMIC II Uncertificated Regular
Interest outstanding immediately prior to such Distribution Date. The
Uncertificated Accrued Interest in respect of any REMIC II Uncertificated
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. With respect to
any REMIC II Uncertificated Regular Interest, for any Distribution Date, the
Uncertificated Accrued Interest in respect of such REMIC II Uncertificated
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 II Uncertificated
Regular Interest for such Distribution Date, and the denominator of which is the
aggregate Uncertificated Accrued Interest in respect of all the REMIC II
Uncertificated Regular Interests for such Distribution Date.
"Uncertificated Principal Balance": With respect to any Class of REMIC I
Regular Interests, (i) on or prior to the first Distribution Date, an amount
equal to the initial principal amount of such Class as specified in the
Preliminary Statement hereto, and (ii) as of any date of determination after the
first Distribution Date, an amount equal to the Uncertificated Principal Balance
of the Class of Corresponding REMIC II Uncertificated Regular Interests on the
Distribution Date immediately prior to such date of determination or the
Certificate Principal Balance of the Class of Corresponding Certificates on the
Distribution Date immediately prior to such date of determination, as the case
may be, and in each case after giving effect to distributions made, any Realized
Losses or Additional Trust Fund Expenses applied, as of such Distribution Date.
With respect to any Class of REMIC II Uncertificated Regular Interests, (i) on
or prior to the first Distribution Date, an amount equal to the initial
principal amount of such Class as specified in the Preliminary Statement hereto,
and (ii) as of any date of determination after the first Distribution Date, an
amount equal to the Certificate Principal Balance of the Class of Corresponding
Certificates on the Distribution Date immediately prior to such date of
determination.
"U.S. Person": A citizen or resident of the United States, a corporation,
partnership (except to the extent provided in the applicable Treasury
regulations) 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 such U.S. Persons have the
authority to control all substantial decisions of the trust (or, to the extent
provided in applicable Treasury regulations, certain trusts in existence on
August 20, 1996 which are eligible to elect to be treated as U.S. Persons).
"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
Certificates. 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.
"Withheld Amounts": As defined in Section 4.05.
"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 Incorporation of Preliminary Statement.
The parties hereto acknowledge that the Preliminary Statement at the
beginning of this Agreement constitutes a part of this Agreement.
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 NationsBank/NationsLink Mortgage Loan Purchase and Sale
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 and the Additional Warranting Party; (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, the REMIC III Distribution Account, the Interest Reserve
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, the REMIC III Distribution Account, the
Interest Reserve 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
Original Closing Date, the Mortgage File for each Mortgage Loan so assigned by
the Mortgage Loan Seller hereunder. In addition, the Additional Warranting Party
shall, at the direction and on behalf of the Mortgage Loan Seller, 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 Original Closing Date, the Mortgage File for each Bank of America Mortgage
Loan so assigned by the Mortgage Loan Seller hereunder. If the Mortgage Loan
Seller or the Additional Warranting Party, as applicable, is unable to deliver
or cause the delivery of any original Mortgage Note, such party 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 or the Additional Warranting Party,
as applicable, 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 loans, documents and/or instruments) by the Mortgage Loan Seller or the
Additional Warranting Party, as applicable, 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
Original 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 Original Closing Date (or within such longer period after the Original
Closing Date as the Trustee may consent to, which consent shall not be
unreasonably withheld so long as the Mortgage Loan Seller or the Additional
Warranting Party, as applicable, 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 or the Additional Warranting
Party, as applicable, 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 or the
Additional Warranting Party, as applicable, 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
Original 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 Original Closing Date (or within such longer period after the Original
Closing Date as the Trustee may consent to, which consent shall not be
unreasonably withheld so long as the Mortgage Loan Seller or the Additional
Warranting Party, as applicable, 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 or the Additional Warranting
Party, as applicable, 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 or the Additional Warranting Party,
as applicable, shall have delivered to the Trustee or a Custodian appointed
thereby, on or before the Original Closing Date, a commitment for title
insurance "marked-up" at the closing of such Mortgage Loan, and the Mortgage
Loan Seller or the Additional Warranting Party, as applicable, 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 or the Additional Warranting Party, as
applicable, 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 NationsBank Mortgage Loan,
and the Additional Warranting Party shall, as to each Bank of America Mortgage
Loan, in each such case at its own expense, promptly (and in any event within 45
days of the Original Closing Date, unless recording/filing information is not
available by such time for assignments solely due to recorder's office delay, in
which case such submission shall be made promptly after such information does
become available from the recorder's office) 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 party responsible for filing and forwarding
the document 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, in the case of a
NationsBank Mortgage Loan, and the Additional Warranting Party, in the case of a
Bank of America Mortgage Loan, 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, in the case of a NationsBank
Mortgage Loan, and the Additional Warranting Party, in the case of a Bank of
America Mortgage Loan, shall, in each such case 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 or the
Additional Warranting Party's possession (or, in either case, under its control)
relating to the Mortgage Loans (except attorney-client privileged communications
or confidential internal credit analysis of the client) 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 the Additional Warranting Party (or, in either case, under its
control) with respect to the Mortgage Loans, shall be delivered or caused to be
delivered by the Mortgage Loan Seller or the Additional Warranting Party, as
applicable, to the Master Servicer, within 10 days of the Original 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 NationsBank Mortgage Loan
which is secured by the interest of the related Mortgagor under a Ground Lease,
and the Additional Warranting Party shall, as to each Bank of America Mortgage
Loan which is secured by the interest of the related Mortgagor under a Ground
Lease, in each case at its own expense, promptly (and in any event within 45
days of the Original 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 VI, to the provisions of Section 2.01 and to the
further review provided for in this Section 2.02, of, with respect to each
Mortgage Loan, an original Mortgage Note endorsed to the Trustee, an original or
a copy of the Mortgage (with evidence of recording thereon), and an original
assignment of such Mortgage executed in favor of the Trustee (in such capacity)
and of all other assets included in REMIC I, in good faith and without notice of
any adverse claim, and declares that it or a Custodian on its behalf holds and
will hold the documents delivered or caused to be delivered by the Mortgage Loan
Seller and the Additional Warranting Party 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 Original 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 Original 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 or the Additional Warranting Party 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, the Mortgage Loan Seller and the
Additional Warranting Party 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 or the Additional Warranting Party, as
applicable, 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)(a) (based solely on the Mortgage
Rate shown on the related Mortgage Note and any amendments or other
modifications thereof contained in the Mortgage File), (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
Original Closing Date; and, on or about the first anniversary of the Original
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, the
Mortgage Loan Seller and the Additional Warranting Party 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 or the
Additional Warranting Party, as applicable, 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 or the
Additional Warranting Party, 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 or the
Additional Warranting Party, as applicable, 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 and the Additional Warranting Party
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, if a NationsBank Mortgage Loan is affected, or the Additional
Warranting Party, if a Bank of America Mortgage Loan is affected, 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 and Additional Warranting Party's
Repurchase of Mortgage Loans for Document Defects and
Certain Breaches of Representations and Warranties.
(a) Within 90 days of the earlier of discovery or receipt of written notice
by the Responsible Party, of a Document Defect in respect of any Mortgage Loan
or a breach of any representation or warranty set forth in Section 2.05(c) in
respect of any Mortgage Loan, 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 Responsible Party shall cure
such Document Defect or breach, as the case may be, in all material respects or
repurchase (or, if the Responsible Party is the Mortgage Loan Seller, 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. However, if such Document Defect or breach is capable of being cured but
not within the 90 day period and the Responsible Party has commenced and is
diligently proceeding with the cure of such Document Defect or breach within
such 90 day period (as evidenced by an Officer's Certificate of the Responsible
Party delivered to the Trustee setting forth the circumstances surrounding such
delay, the measures being undertaken to cure such Document Defect or breach and
a representation that it is diligently pursuing such measures), such Responsible
Party shall have an additional 90 days to complete such cure (or, failing such
cure, to repurchase the related Mortgage Loan). Notwithstanding the immediately
preceding sentence, within 90 days of the earlier of discovery or receipt of
written notice by the Responsible Party that there is a Document Defect or other
breach of the representations and warranties set forth in Section 2.05(c)(xxxi),
(lii), (liii) or (liv) (that causes any Mortgage Loan to not constitute a
"qualified mortgage" within the meaning of Section 860G(a)(3) of the Code), the
Responsible Party shall either cure such defect or breach or 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 Responsible Party, upon
delivery to each of the Trustee, the Master Servicer and the Special Servicer of
a receipt executed by the Responsible Party, 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 Responsible Party, in the same manner. The form, sufficiency
and expense of all such instruments and certificates shall be the responsibility
of the Responsible Party.
(c) This Section 2.03 provides the sole remedies available to the
Certificateholders, or to the Trustee on behalf of the Certificateholders,
respecting any Document Defect or any breach of any representation or warranty
set forth in Section 2.05(c) hereof. If the Responsible Party 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 Responsible Party is
required to repurchase such Mortgage Loan under Section 2.03(a) or 2.03(b)
hereof, the Responsible Party 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 Original Closing Date and the Sequel Closing Date unless otherwise stated
below, 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) As of the Original Closing Date, 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.
(viii) As of the Original Closing Date, assuming the accuracy of the
representation and warranty of the Mortgage Loan Seller and the Additional
Warranting Party made pursuant to Section 2.05(c)(i) hereof, immediately
prior to the transfer of the Mortgage Loans by the Depositor to the Trustee
hereunder as of the Original Closing Date, the Depositor had good and
marketable title to, and was the sole owner of, each 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).
(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
and the Additional Warranting Party.
(a) The Mortgage Loan Seller hereby represents and warrants to the other
parties hereto and for the benefit of the Certificateholders, as of the Original
Closing Date and the Sequel Closing Date unless otherwise stated below, 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.
(vii) The Subservicing Agreement in place as of the Original Closing
Date complies with the requirements of this Agreement in all material
respects.
(b) The Additional Warranting Party hereby represents and warrants to the
other parties hereto and for the benefit of the Certificateholders, as of the
Original Closing Date and the Sequel Closing Date unless otherwise stated below,
that:
(i) The Additional Warranting Party 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 Additional
Warranting Party, and the performance and compliance with the terms of this
Agreement by the Additional Warranting Party, will not violate the
Additional Warranting Party's articles of association and by-laws or
constitute a default (or an event which, with notice or lapse of time, or
both, would constitute a default) under, or result in the breach of, any
material agreement or other instrument to which it is a party or which is
applicable to it or any of its assets.
(iii) The Additional Warranting Party 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 Additional Warranting Party, enforceable
against the Additional Warranting Party 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 Additional Warranting Party 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 Additional Warranting Party's good faith
and reasonable judgment, is likely to affect materially and adversely
either the ability of the Additional Warranting Party to perform its
obligations under this Agreement or the financial condition of the
Additional Warranting Party.
(vi) No litigation is pending or, to the best of the Additional
Warranting Party's knowledge, threatened against the Additional Warranting
Party which would prohibit the Additional Warranting Party from entering
into this Agreement or, in the Additional Warranting Party's good faith and
reasonable judgment, is likely to materially and adversely affect either
the ability of the Additional Warranting Party to perform its obligations
under this Agreement or the financial condition of the Additional
Warranting Party.
(c) The Mortgage Loan Seller hereby represents and warrants (and,
accordingly, is the "Representing Party" with respect to each such
representation and warranty so made) with respect to (but solely with respect
to) each NationsBank Mortgage Loan, and the Additional Warranting Party hereby
represents and warrants (and, accordingly, is the "Representing Party" with
respect to each such representation and warranty so made) with respect to (but
solely with respect to) each Bank of America 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 Original Closing Date,
that:
(i) Immediately prior to the transfer thereof by Representing Party to
NationsBank (in the case of the Additional Warranting Party) or the
Depositor (in the case of the Mortgage Loan Seller), the Representing Party
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 Representing Party had full right and authority to sell,
assign and transfer such Mortgage Loan to NationsBank (in the case of the
Additional Warranting Party) or the Depositor (in the case of the Mortgage
Loan Seller).
(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 ability of the
related Borrower to timely pay in full the principal and interest on 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 Representing Party 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 Representing Party has not received actual notice (A) that
there is any proceeding pending or threatened for the total or partial
condemnation of the related Mortgaged Property or (B) that there is any
material damage at the related Mortgaged Property that materially and
adversely affects the value of such Mortgaged Property.
(x) At origination, such Mortgage Loan complied in all material
respects with all requirements of federal, state and local laws, including,
without limitation, laws pertaining to usury, relating to the origination
of such Mortgage Loan.
(xi) The proceeds of such Mortgage Loan have been fully disbursed, and
there is no requirement for future advances thereunder.
(xii) The Mortgage Note and Mortgage(s) for such Mortgage Loan and all
other documents and instruments evidencing, guaranteeing, insuring or
otherwise securing such Mortgage Loan are each the legal, valid and binding
obligation of the maker thereof (subject to any non-recourse provisions
contained in any of the foregoing agreements and any applicable state
anti-deficiency legislation), enforceable in accordance with their
respective terms, except as such enforcement may be limited by bankruptcy,
insolvency, reorganization, receivership, moratorium or other laws relating
to or affecting the rights of creditors generally and by general principles
of equity (regardless of whether such enforcement is considered in a
proceeding in equity or at law).
(xiii) The related Mortgaged Property is: (A) if a commercial
property, insured by a fire and extended perils insurance policy, issued by
an insurer meeting the requirements of such Mortgage Loan in an amount not
less than the greater of (1) the 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, except in the case of Bank of America Mortgage Loans,
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 as required by the
Master Servicer and in such amounts and for such periods as required by the
Master Servicer; at least fifteen 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 Representing Party, 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). Except to the extent
described in the next succeeding sentence with respect to the Mortgage Loan
secured by the Mortgaged Property identified on the Mortgage Loan Schedule
as loan number 50886 ("International Home Furnishing Center") (the
"International Home Furnishing Center Loan"), 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 (except as noted
on Schedule V with respect to certain Bank of America Mortgage Loans) with
the underwriting standards of the Mortgage Loan Seller, in the case of a
NationsBank Loan, or the Additional Warranting Party, in the case of a Bank
of America Mortgage Loan. With respect to the International Home Furnishing
Center Loan, the Phase I report recommended a Phase II report which was not
and is not expected to be performed; however, (i) with respect to
environmental liabilities arising from prior manufacturing uses of the
related Mortgaged Property, the related borrower has obtained insurance and
(ii) with respect to environmental liabilities arising from soil
contamination present on the Mortgaged Property, (A) the leaking
underground storage tanks that were the source of the existing
contamination have been removed, (B) the affected area of the Mortgaged
Property is fully paved and (C) the Mortgaged Property is connected to the
municipal water supply.
(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 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 Representing Party, 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 Representing Party or its agents (which shall include
the Master Servicer).
(xxii) As of the date of origination of such Mortgage Loan and as of
the Original 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 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 Original
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 Representing
Party has not received actual notice of any event (other than payments due
but not yet delinquent or, in the case of the Mortgage Loan secured by the
Mortgaged Property identified on the Mortgage Loan Schedule as loan number
3044591 ("R&D Building (Mighty Micro)"), a vacancy) 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 Representing Party 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 Representing
Party'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 Representing Party'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 constitutes a "qualified mortgage" within
the meaning of Section 860G(a)(3) of the Code (but without regard to the
rule in Treasury Regulations Section 1.860G-2(f)(2) that treats a defective
obligation as a qualified mortgage, or any substantially similar successor
provision).
(xxxii) If such Mortgage Loan is secured by a mortgage lien on the
applicable Mortgagor's leasehold interest in the related Mortgaged
Property, but not a mortgage lien on the related fee interest, then either
(A) the related ground lessor has subordinated its interest in the related
Mortgaged Property to the interest of the holder 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 Representing Party 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 Original 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 Representing Party 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 either (A) the
subordinate debt constitutes a "cash flow" mortgage loan (that is, payments
are required to be made thereon only to the extent that certain net cash
flow from the related Mortgaged Property (calculated in accordance with the
related loan documents) is sufficient after payments on such Mortgage Loan
have been made and certain expenses have been paid) or (B) the holder of
the subordinate debt has agreed not to foreclose on the related Mortgaged
Property so long as such Mortgage Loan is outstanding and the Special
Servicer on behalf of the Trust is not pursuing a foreclosure action.
(xxxix) If such Mortgage Loan is secured by a mortgage lien on the
applicable Mortgagor's leasehold interest under a Ground Lease, such Ground
Lease has an original term (or an original term plus one or more optional
renewal terms, which, under all circumstances, may be exercised, and will
be enforceable, by the mortgagee if it takes possession of such leasehold
interest) that extends not less than 10 years beyond the stated maturity of
the related Mortgage Loan.
(xl) In the case of the NationsBank Mortgage Loans, except with
respect to the International Home Furnishing Center Loan, 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.
In the case of the Bank of America Mortgage Loans, such Mortgage Loan
requires the Mortgagor to pay all damages attributable to such fraud.
(xli) As of the Original Closing Date, the related Mortgagor was not,
to the best of the Representing Party'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
Representing Party's actual knowledge, no material default existed under
such Ground Lease.
(xliii) The Representing Party 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 with respect to the Mortgage
Loan relating to the Mortgaged Property identified on the Mortgage Loan
Schedule as loan number 50752 ("Parkview Tower Apartments"), 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) Except as identified on Schedule III hereto, neither the related
Mortgage Note nor the related Mortgage requires the mortgagee to release
all or any material portion of the related Mortgaged Property from the lien
of the related Mortgage except upon (i) payment in full of all amounts due
under the related Mortgage Loan or (ii) a substitution of government
securities for such Mortgaged Property in a defeasance complying with the
REMIC Provisions.
(xlvi) Except as identified on Schedule IV hereto, such Mortgage Loan
does not permit the related Mortgaged Property to be encumbered subsequent
to the Original 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 Representing Party'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 Representing Party'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 Representing Party 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, Representing Party 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
Representing Party'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
Representing Party represents and warrants that:
(A) 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 in the case of the International
Home Furnishing Center Loan (as to which the related Ground
Lease is silent and the related ground lessor is a
municipality) 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 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, it
being understood that in respect of a total or substantially
total loss or taking, only option (2) may apply, subject to
applicable law.
(D) the Ground Lease or a memorandum thereof has been duly
recorded, the ground lease permits the interest of the
lessee thereunder to be encumbered by the related Mortgage,
and there has not been a material change in the terms of the
Ground Lease since its recordation, with the exception of
written instruments that are part of the related Mortgage
File;
(E) the related borrower's interest in the Ground Lease is
assignable to the Trustee upon notice to, but without the
consent of, the lessor thereunder (or if any such consent is
required, it has been obtained prior to the Original Closing
Date) or, except with respect to the Mortgage Loan secured
by the Mortgaged Property identified on the Mortgage Loan
Schedule as loan number 50078 ("Market Place at Webb
Chapel") (the "Market Place at Webb Chapel Mortgage Loan"),
in the event that it is so assigned, it is further
assignable by the Trustee and its successors and assigns
upon notice to, but without a need to obtain the consent of,
such lessor;
(F) as of the Original Closing Date, the Ground Lease is in full
force and effect and no default has occurred under the
Ground Lease and, to the Representing Party's actual
knowledge, there is no existing condition which, but for the
passage of time or the giving of notice, would result in a
default under the terms of the Ground Lease; and
(G) except with respect to the Market Street at Webb Chapel
Mortgage Loan and the International Home Furnishing Center
Loan, the Ground Lease requires the lessor thereunder to
enter into a new lease with the lender upon termination of
the ground lease for any reason, including rejection of the
Ground Lease in a bankruptcy proceeding.
(l) Such Mortgage Loan was originated by or for a savings and loan
association, savings bank, commercial bank, credit union, insurance
company, or similar institution which is supervised and examined by a
Federal or State authority, or by a mortgagee approved by the Secretary of
Housing and Urban Development pursuant to Sections 203 and 211 of the
National Housing Act; each Mortgaged Property consists of one or more
parcels of real property upon which is located one or more commercial
structures and otherwise meets the requirements for eligibility under the
Secondary Mortgage Market Enhancement Act of 1984 for commercial property.
(li) With respect to each Mortgage Loan not originated by the
Representing Party:
(A) such Mortgage Loan was underwritten in accordance with
standards established by the Representing Party, using
application forms and related credit documents approved by
the Representing Party;
(B) the Representing Party approved each application and related
credit documents before a commitment by the Mortgage Loan
originator was issued, and no such commitment was issued
until the Representing Party agreed to fund such Mortgage
Loan;
(C) the Mortgage Loan was originated by the Mortgage Loan
originator pursuant to an ongoing, standing relationship
with the Representing Party;
(D) the closing documents (which include assignment documents
executed by the Mortgage Loan originator in favor of the
Representing Party at the time of the closing of the
Mortgage Loan) for the Mortgage Loan were prepared on forms
approved by the Representing Party, and reflect the
Representing Party as the successor and assign to the
Mortgage Loan originator; and
(E) such Mortgage Loan either was actually funded by and
assigned to the Representing Party at the closing thereof,
or was funded initially by the Mortgage Loan originator at
the closing thereof and then acquired by the Representing
Party from such Mortgage Loan originator pursuant to its
ongoing, standing relationship with the Representing Party.
(lii) (1) such Mortgage Loan is directly secured by a Mortgage on a
commercial property or multifamily residential property, and (2) the fair
market value of the real property securing such Mortgage Loan was at least
equal to 80% of the principal amount of the Mortgage Loan (a) at
origination (or if the Mortgage Loan has been modified in a manner that
constitutes a deemed exchange under Section 1001 of the Code at a time when
the Mortgage Loan was not in default or default with respect thereto was
not reasonably foreseeable, the date of the last such modification) or (b)
at the Original Closing Date; provided that the fair market value of the
real property interest must first be reduced by (A) the amount of any lien
on the real property interest that senior to the Mortgage Loan (unless such
senior lien also secures a Mortgage Loan, in which event the computation
described in (a) and (b) shall be made on a aggregated basis) and (B) a
proportionate amount of any lien that is in parity with the Mortgage Loan
(unless such other lien secures a Mortgage Loan that is
cross-collateralized with such Mortgage Loan, in which event the
computation described in (a) and (b) shall be made on an aggregate basis).
(liii) With respect to such Mortgage Loan, any prepayment premium
constitutes a "customary prepayment penalty" within the meaning of Treasury
Regulations Section 1.860G-1(b)(2).
(liv) If such Mortgage Loan contains a provision for any defeasance of
mortgage collateral, such Mortgage Loan either (a) requires the consent of
the holder the Mortgage Loan to any defeasance or (b) permits defeasance
(i) no earlier than two years after the Original Closing Date, (ii) only
with substitute collateral constituting "government securities" within the
meaning of Treas. Reg. 1.860G-2(a)(8)(i) and (iii) only to facilitate the
disposition of the Mortgaged Property and not as a part of an arrangement
to collateralize a REMIC offering with obligations that are not real estate
mortgages.
(lv) Under the terms of the related Mortgage, any insurance proceeds
or condemnation award with respect to the Mortgaged Property 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 accrued interest, it
being understood that in respect of a total or substantially total loss or
taking, only option (2) may apply.
(lvi) If the related Mortgage is a deed of trust, a trustee, duly
qualified under applicable law to serve as such, has been properly
designated and currently so serves and is named in the deed of trust, and
no fees or expenses are or will become payable to the trustee under the
deed of trust, except in connection with the sale or release of the
Mortgaged Property following default or payment of the Mortgage Loan.
(lvii) No claims have been made under any title insurance policy, and
to the Representing Party's actual knowledge, no action has been taken
which would materially impair such policy.
(lviii) Each Mortgage Loan originated by the Representing Party was
underwritten consistent in all material respects with the standards of the
Representing Party as then in effect.
(lix) Except with respect to Mortgage Loans relating to restaurant
franchises, the related Mortgage File contains an Appraisal of the
Mortgaged Property, and such Appraisal and the related appraiser satisfy
the requirements of Title XI of the Federal Institutions, Reform, Recovery
and Enforcement Act of 1989 and the regulations promulgated thereunder, all
as in effect on the date the Mortgage Loan was originated.
The Mortgage Loan Seller hereby represents and warrants, as of the Original
Closing Date, to the other parties hereto and for the benefit of the
Certificateholders (and, accordingly, is the "Representing Party" with respect
to such representation and warranty so made) that, assuming the truth and
accuracy of the representations and warranties made by the Additional Warranting
Party with respect to the Bank of America Mortgage Loans pursuant to paragraphs
(i) and (ii) of this Section 2.05(c), immediately prior to the transfer of each
Bank of America Mortgage Loan 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), and the Mortgage Loan Seller had full right and authority to sell, assign
and transfer such Mortgage Loan to the Trustee.
(d) 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 subsections (a) and (b) 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 (c) 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. It is further understood and agreed that the Mortgage Loan
Seller makes no representations or warranties with regard to the Bank of America
Mortgage Loans (except as set forth in the last sentence of Section 2.05(c)
above) and that the Mortgage Loan Seller has no obligation to cure any breach of
any representation or warranty made by the Additional Warranting Party with
respect to a Bank of America Mortgage Loan nor to repurchase any Bank of America
Mortgage Loan (except in connection with any breach of the representation and
warranty made by the Mortgage Loan Seller in the last sentence of Section
2.05(c) above). It is also further understood and agreed that the Additional
Warranting Party makes no representations or warranties with regard to the
NationsBank Mortgage Loans and that the Additional Warranting Party has no
obligation to cure any breach of any representation or warranty made by the
Mortgage Loan Seller with respect to a NationsBank Mortgage Loan nor to
repurchase any NationsBank Mortgage Loan.
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 Original Closing
Date and the Sequel Closing Date unless otherwise stated below, that:
(i) The Master Servicer is duly organized, validly existing and in
good standing as a corporation under the laws of the State of Delaware, 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 has the full corporate power and authority
to enter into and consummate all transactions contemplated by this
Agreement, has duly authorized the execution, delivery and performance of
this Agreement, and has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by each of the other parties hereto, constitutes a valid, legal
and binding obligation of the Master Servicer, enforceable against the
Master Servicer in accordance with the terms hereof, subject to (A)
applicable bankruptcy, insolvency, reorganization, moratorium and other
laws affecting the enforcement of creditors' rights generally, and (B)
general principles of equity, regardless of whether such enforcement is
considered in a proceeding in equity or at law.
(v) The Master Servicer is not in violation of, and its execution and
delivery of this Agreement and its performance and compliance with the
terms of this Agreement will not constitute a violation of, any law, any
order or decree of any court or arbiter, or any order, regulation or demand
of any federal, state or local governmental or regulatory authority, which
violation, in the Master Servicer's good faith and reasonable judgment, is
likely to affect materially and adversely either the ability of the Master
Servicer to perform its obligations under this Agreement or the financial
condition of the Master Servicer.
(vi) No litigation is pending or, to the best of the Master Servicer's
knowledge, threatened against the Master Servicer which would prohibit the
Master Servicer from entering into this Agreement or, in the Master
Servicer's good faith and reasonable judgment, is likely to materially and
adversely affect either the ability of the Master Servicer to perform its
obligations under this Agreement or the financial condition of the Master
Servicer.
(vii) Each officer or employee of the Master Servicer that has
responsibilities concerning the servicing and administration of the
Mortgage Loans is covered by errors and omissions insurance in the amounts
and with the coverage required by Section 3.07(c). None of the Master
Servicer or any of its 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.
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 Original
Closing Date and the Sequel 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 or any of its 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.
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 Original Closing Date and the Sequel Closing Date
unless otherwise stated below, 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 Original 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 Regular
Interests. 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
Regular Interests and the REMIC III Certificates.
SECTION 2.11 Issuance of the Class R-II Certificates; Creation of the
REMIC II Regular Interests.
Concurrently with the assignment to the Trustee of the assets included in
REMIC II, and in exchange therefor, at the direction of the Depositor, the
Original Certificates and the Unaffected Certificates have been issued as of the
Original Closing Date and the Trustee has executed, authenticated and delivered
to or upon the order of the Depositor, the Class R-II Certificates in authorized
denominations. As of the Sequel Closing Date, the REMIC II Uncertificated
Regular Interests have been issued to the Depositor in exchange for the Original
Certificates. The interests evidenced by the Class R-II Certificates, together
with the REMIC II Regular Interests, constitute the entire beneficial ownership
of REMIC II. The rights of the Class R-II Certificateholders, the Holders of the
Unaffected Certificates and REMIC III to receive distributions from the proceeds
of REMIC II in respect of the Class R-II Certificates, the Unaffected
Certificates and the REMIC II Uncertificated Regular Interests, respectively,
and all ownership interests of the Class R-II Certificateholders, the Holders of
the Unaffected Certificates and REMIC III in and to such distributions, shall be
as set forth in this Agreement.
SECTION 2.12 Conveyance of REMIC II Uncertificated Regular Interests;
Acceptance of REMIC III by the Trustee
The Depositor, as of the Sequel 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 II Uncertificated
Regular Interests to the Trustee for the benefit of the Holders of the REMIC III
Certificates. The Trustee acknowledges the assignment to it of the REMIC II
Uncertificated 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 III Certificates.
SECTION 2.13 Issuance of the REMIC III Certificates.
Concurrently with the assignment to the Trustee of the REMIC II
Uncertificated 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 III Certificates in authorized
denominations evidencing the entire beneficial ownership of REMIC III. The
rights of the respective Classes of Holders of the REMIC III Certificates to
receive distributions from the proceeds of REMIC III in respect of their REMIC
III Certificates, and all ownership interests of the respective Classes of
Holders of the REMIC III Certificates in and to such distributions, shall be as
set forth in this Agreement.
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) and the terms and provisions of this
Agreement, 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
3.11(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 Original 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 Original
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, the REMIC II
Distribution Account and the REMIC III 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 Trustee as holder of the REMIC I Regular Interests and the REMIC II
Uncertificated Regular Interests and 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 Trustee as
holder of the REMIC II Uncertificated Regular Interests and the Holders of the
Unaffected Certificates and the Class R-II Certificates. 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 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)(ii) and Section 4.01(c)(ii) hereof on such
date.
(d) The Trustee shall establish and maintain the REMIC III Distribution
Account in the name of the Trustee, in trust for the benefit of the Holders of
the REMIC III Certificates. The REMIC III Distribution Account shall be
established and maintained as an Eligible Account. With respect to each
Distribution Date, the Trustee shall withdraw from the REMIC II Distribution
Account and (i) deposit in the REMIC III Distribution Account on such date the
portion of the Available Distribution Amount (including P&I Advances) and
Prepayment Premiums to be distributed in respect of the REMIC II Uncertificated
Regular Interests pursuant to Section 4.01(a)(ii) and Section 4.01(c)(ii) hereof
on such date and (ii) distribute to the Holders of the Unaffected Certificates
on such Distribution Date the portion of the Available Distribution Amount
(including P&I Advances) and Prepayment Premiums to be distributed in respect
thereof pursuant to Section 4.01(b) on such date.
(e) 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 Original Closing Date and of the new location of
the Certificate Account prior to any change thereof. The Distribution Account,
the REMIC II Distribution Account and the REMIC III Distribution Account shall
be established at the Corporate Trust Office of the Trustee as of the Original
Closing Date, in the case of the Distribution Account and the REMIC II
Distribution Account, and as of the Sequel Closing Date in the case of the REMIC
III Distribution Account, and the Trustee shall give notice to the other parties
hereto of the new location of such accounts 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, the
Additional Warranting Party 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) as contemplated by Section 3.04(c), to deposit into the REMIC II
Distribution Account on the related Distribution Date the Available
Distribution Amount and Prepayment Premiums to be distributed in respect of
the REMIC I Regular Interests pursuant to Sections 4.01(a)(ii) and
4.01(c)(ii) or Section 9.01, as applicable;
(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, REMIC II or REMIC III or on the assets or transactions of any 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);
(vii) to make distributions to the Holders of the Class R-I
Certificates as contemplated by Section 4.01(a)(iii) or Section 9.01, as
applicable; and
(viii) 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 deposit into the REMIC III
Distribution Account on the related Distribution Date the portion of the
Available Distribution Amount and Prepayment Premiums to be distributed in
respect of the REMIC II Uncertificated Regular Interests on each Distribution
Date pursuant to Section 4.01(a)(ii) and 4.01(c)(ii) or Section 9.01, as
applicable; (ii) to make distributions to Holders of the Unaffected Certificates
pursuant to Section 4.01(b) or Section 9.01, as applicable; (iii) to make
distributions to Holders of the Class R-II Certificates pursuant to Section
4.01(a)(iv) or Section 9.01, as applicable; and (iv) to clear and terminate the
REMIC II Distribution Account at the termination of this Agreement pursuant to
Section 9.01.
(d) The Trustee may make withdrawals from the REMIC III Distribution
Account for any of the following purposes: (i) to make distributions on the
Class A-1, Class A-2, Class B, Class C, Class D, Class E, Class F and Class
R-III Certificates on each Distribution Date pursuant to Sections 4.01(b) and
4.01(c)(i) or Section 9.01, as applicable; (ii) to deposit in the Interest
Reserve Account the Withheld Amounts required to be deposited pursuant to
Section 4.05, and (iii) to clear and terminate the REMIC III Distribution
Account at the termination of this Agreement pursuant to Section 9.01.
SECTION 3.06 Investment of Funds in the Certificate Account, the Interest
Reserve Account and the REO Account.
(a) The Master Servicer may direct any depository institution maintaining
the Certificate Account, the Special Servicer may direct any depository
institution maintaining the REO Account and the Trustee may direct any
depository institution maintaining the Interest Reserve 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,
and the Trustee (with respect to the Interest Reserve Account), on behalf of the
Certificateholders, shall (and the Trustee hereby designates the Master
Servicer, the Special Servicer or itself, as applicable, as the Person that
shall) (i) be the "entitlement holder" of any Permitted Investment that is a
"security entitlement" and (ii) maintain "control" of any Permitted Investment
that is either a "certificated security" or an "uncertificated security". For
purposes of this Section 3.06(a), the terms "entitlement holder", "security
entitlement", "control", "certificated security" and "uncertificated security"
shall have the meanings given such terms in Revised Article 8 (1994 Revision) of
the UCC, and "control" of any Permitted Investment by the Master Servicer or the
Special Servicer shall constitute "control" by a Person designated by, and
acting on behalf of, the Trustee for purposes of Revised Article 8 (1994
Revision) of the UCC. 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), the Special Servicer (in the case of
the REO Account) and the Trustee (in the case of the Interest Reserve Account)
shall:
(i) consistent with any notice required to be given thereunder, demand
that payment thereon be made on the last day such Permitted Investment may
otherwise mature hereunder in an amount equal to the lesser of (1) all
amounts then payable thereunder and (2) the amount required to be withdrawn
on such date; and
(ii) demand payment of all amounts due thereunder promptly upon
determination by the Master Servicer, the Special Servicer or the Trustee,
as the case may be, that such Permitted Investment would not constitute a
Permitted Investment in respect of funds thereafter on deposit in the
Investment Account.
(b) 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). Whether or not the
Trustee directs the investment of funds in the Interest Reserve 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
Certificateholders and shall be subject to its withdrawal in accordance with
Section 4.05. 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), the Special Servicer (in the case of the REO
Account) and the Trustee (in the case of the Interest Reserve 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 in respect to losses incurred in respect of any Permitted Investment on
deposit in the Interest Reserve Account and 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.
(i) 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 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 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
Original 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 Original 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 within ten Business Days from receipt of a
complete assumption/transfer documentation package from a Sub-Servicer on
Mortgage Loans not requiring Rating Agency review, and as promptly as reasonably
possible on Mortgage Loans requiring Rating Agency review, (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, or more
than $20,000,000, 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 Servicer).
(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 any of REMIC I, REMIC II or
REMIC III 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 Original 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 0.02% 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 Original 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 Original 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 or the Additional Warranting Party'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 or the Additional Warranting
Party 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
or the Additional Warranting Party 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, at its own cost and
expense, 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, 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 beginning after 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 beginning after the year in which such acquisition occurred, will
not result in the imposition of taxes on "prohibited transactions" of REMIC I,
REMIC II or REMIC III as defined in Section 860F of the Code or cause REMIC I,
REMIC II or REMIC III 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 or otherwise realize upon 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 60 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 0.02% 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), neither the Master Servicer nor the Special
Servicer shall 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 or the Special Servicer's good faith and reasonable judgment,
materially alter 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); provided, however, the Special Servicer may 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 August 20, 2028, or beyond the date which is 10 years prior to the
expiration date of any related Ground Lease;
(iii) unless the proviso in Section 3.20(a)(i) above applies, 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
constitute a "significant modification" of such Mortgage Loan within the
meaning of Treasury Regulations Section 1.860G-2(b) (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 (A) 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 (B) in
the case of substitutions of collateral only, the Master Servicer or the
Special Servicer, as the case may be, have obtained written confirmation
from each Rating Agency that such substitution will not result in the
withdrawal, downgrade or qualification of any rating then assigned to any
Class of Certificates;
(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 a defeasance pursuant to the terms of the related
Mortgage Loan 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 Section 3.20(a)(iii) applies and 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, or if any substitution of collateral is to be made,
the Rating Agencies have each 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 and/or S&P, as applicable, to any
Class of Certificates; and
(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), (ii), (iv), (v) and (vi) above shall not apply to 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 Original 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. The Special Servicer
shall include with any such Officer's Certificate the appraisals and other
supporting documentation forming the basis for its conclusion.
(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 Trust 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
Original 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
Original 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.
SECTION 3.26 Certain Matters with Respect to Loans Permitting Defeasance,
Franchise Loans and Certain Loans Permitting Additional
Debt.
(a) With respect to each Mortgage Loan as to which the Master Servicer
shall have the discretion pursuant to the terms thereof to require the related
borrower to post defeasance collateral in lieu of making a permitted prepayment,
the Master Servicer shall so require defeasance.
(b) The Master Servicer shall use best efforts to enforce any provision of
the related Mortgage Loan Documents that require, as a condition to the exercise
by the Mortgagor of its defeasance rights, that the Mortgagor pay any costs and
expenses associated with such exercise.
(c) To the extent that the terms of a Mortgage that permits defeasance
permits the lender to require the related borrower to deliver a certification
from the borrower's independent certified public accountants as to the
sufficiency of the related treasury securities, the Master Servicer shall so
require such a certification and provide a copy thereof to each Rating Agency.
(d) To the extent that the terms of a Mortgage that permits defeasance does
not otherwise require Rating Agency consent but does permit the lender to
approve the form and substance of legal opinions required to be delivered by the
related borrower in connection with the defeasance, and subject to the Servicing
Standard, the Master Servicer shall not so approve the form and substance of
such legal opinion unless each Rating Agency shall have confirmed to it in
writing that such defeasance will not result in the withdrawal, downgrade or
qualification of any Class of Certificates.
(e) To the extent that the terms of a Mortgage relating to a hotel or
restaurant franchise permit the lender thereunder the right to consent to the
change of the franchise association (or "flag") of the related hotel or
restaurant, as the case may be, and subject to the Servicing Standard, the
Master Servicer shall not so consent unless each Rating Agency shall have
confirmed to it in writing that such change will not result in the withdrawal,
downgrade or qualification or any Class of Certificates.
(f) To the extent that the terms of a Mortgage that permits the related
borrower, subsequent to the Original Closing Date, to incur additional debt
secured by the Mortgaged Property and condition such incurrence of additional
debt on the execution of a standstill agreement in form and substance
satisfactory to the lender and subject to the Servicing Standard, the Master
Servicer shall not so approve the form and substance of such standstill
agreement unless each Rating Agency shall have confirmed to it in writing that
the form and substance of such standstill agreement is satisfactory to such
Rating Agency and that the execution and delivery of such a standstill agreement
with respect to such additional debt will not result in the withdrawal,
downgrade or qualification of any Class of Certificates.
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, the
"REMIC I Distribution Amount") in the case of all Classes of REMIC I Regular
Interests and distributed on the REMIC I Regular Interests as set forth in
Section 4.01(a)(ii). Thereafter, such amounts shall be considered to be held in
the REMIC II Distribution Account and distributed on the REMIC II Uncertificated
Regular Interests as set forth in Section 4.01(a)(ii) and on the Unaffected
Certificates as set forth in Section 4.01(b) (to the extent of the Available
Distribution Amount, the "REMIC II Distribution Amount"). Such amounts
distributed on the REMIC II Uncertificated Regular Interests shall be considered
to be held in the REMIC III Distribution Account until distributed to the
Holders of the New Certificates and the Class R-III Certificates as set forth in
Section 4.01(b) (to the extent of the Available Distribution Amount).
(ii) (A) Subject to the provisions of clauses (B), (C) and (D) below,
principal amounts, allocation and reimbursement of Realized Losses and
Additional Trust Fund Expenses, and timing and amount of distributions (1)
on each REMIC I Regular Interest will be identical to such amounts,
allocations, reimbursements and timing on the Corresponding REMIC II
Regular Interest (or, in the case of the Class LG, Class LH, Class LJ and
Class LK Regular Interests, the Corresponding Certificates together with
the Class G-II Component, the Class H-II Component, the Class J-II
Component or the Class K-II Component, respectively) and (2) on each REMIC
II Regular Interest will be identical to such amounts, allocations,
reimbursements and timing on the Corresponding Certificates and the related
Component of the Class X Certificates.
(B) Distributions on the Class MA-1, Class MA-2, Class MB, Class MC,
Class MD, Class ME and Class MF Uncertificated Interests shall be deemed to
be equal to distributions made on the Corresponding Certificates with
respect to such REMIC II Regular Interests and the Class A-1 Component, the
Class A-2 Component, the Class B Component, the Class C Component, the
Class D Component, the Class E Component and the Class F Component,
respectively, increased by the product of (a) the excess, if any, of (i)
the Weighted Average Adjusted Net Mortgage Rate over (ii) the Adjusted
REMIC II Remittance Rate and (b) the principal amount of such REMIC II
Uncertificated Regular Interest and decreased by the product of (x) the
excess, if any, of (i) the Adjusted REMIC II Remittance Rate over (ii) the
Weighted Average Adjusted Net Mortgage Rate and (y) the principal amount of
such REMIC II Uncertificated Regular Interest.
(C) Distributions on the Class G-II, Class H-II, Class J-II and Class
K-II Components of the Class MX Uncertificated Interest shall be deemed
equal to distributions on the Class G-III, Class H-III, Class J-III and
Class K-III Components of the Class X Certificates, increased by the
product of (a) the excess, if any, of (i) the Weighted Average Adjusted Net
Mortgage Rate over (ii) the Adjusted REMIC II Remittance Rate, and (b) such
Component's portion of the Class MX Notional Amount, and decreased by the
product of (x) the excess, if any, of (i) the Adjusted REMIC II Remittance
Rate over (ii) the Weighted Average Adjusted Net Mortgage Rate, and (y)
such Component's portion of the Class MX Notional Amount.
(D) To the extent any application required by the preceding clauses
(B) or (C) results in a negative amount, the absolute value of such amount
shall be deemed applied as a reduction of the next most senior Class.
Allocation of payments of interest shortfalls shall be adjusted to reflect
any reallocation of such shortfalls resulting from the operation of the
preceding clauses (B) and (C).
(iii) 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 I Regular Interests pursuant to
Section 4.01(c)(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).
(iv) Any amount that remains in the REMIC II Distribution Account on
each Distribution Date after distribution of the REMIC II Distribution
Amount and Prepayment Premiums allocable to the REMIC II Uncertificated
Regular Interests pursuant to Section 4.01(c)(ii) shall be distributed to
the Holders of the Class R-II Certificates (but only to the extent of the
Available Distribution Amount for such Distribution Date remaining in the
REMIC II Distribution Account, if any).
(b) On each Distribution Date, to the extent of the Available Distribution
Amount for such Distribution Date (in the case of the REMIC I Regular Interests,
the REMIC II Uncertificated Regular Interests and the Unaffected Certificates)
and to the extent of the Available REMIC III Distribution Amount (in the case of
the New Certificates and the Class R-III Certificates), the Trustee (x) 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)(ii)
with respect to each Class of REMIC I Regular Interest, and immediately
thereafter, (y) shall transfer amounts distributable to the REMIC II
Uncertificated Regular Interests from the REMIC II Distribution Account to the
REMIC III Distribution Account in the amounts set forth in Section 4.01(a)(ii)
with respect to each Class of REMIC II Uncertificated Regular Interest, and (z)
shall make distributions from the REMIC II Distribution Account on the
Unaffected Certificates and from the REMIC III Distribution Account on the New
Certificates and the Class R-III Certificates 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 and the Holders of
the Class X 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 and second to the Holders of the Class A-2 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
and the Holders of the Class A-2 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 and Class A-2
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 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 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 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 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 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 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 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 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-III
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) (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 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
(A), to the Holders of the Class X Certificates.
The "PV Yield Loss Amount" for each Distribution Date shall mean, with
respect to any Class of 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 the 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 Regular
Certificates for any Distribution Date, the following definitions shall apply:
The "Annuity Factor" for any Class of Regular Certificates shall be equal
to the following:
-n
1-(1+T)
-----------
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 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 November 20, 2007
Class A-2 July 20, 2008
Class X May 20, 2023
Class B July 20, 2008
Class C August 20, 2008
Class D August 20, 2008
Class E November 20, 2008
Class F January 20, 2013
Class G April 20, 2013
Class H May 20, 2013
Class J May 20, 2013
Class K May 20, 2023
The "Lost Coupon Amount" shall mean: (a) with respect to any Class of the
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 for such Distribution Date 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 Certificates, the
product of (x) the Pass-Through Rate applicable to such Class for such
Distribution Date and (y) 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 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 Regular Certificates on each Distribution Date
pursuant to Section 4.01(c)(i) 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)(ii)
above. The amount of Prepayment Premiums distributable on the New
Certificates shall then be distributed from REMIC II to REMIC III in
respect of the REMIC II Uncertificated Regular Interests, pro rata based
upon the amount of principal distributed in respect of each Class of REMIC
II Uncertificated Regular Interest for such Distribution Date pursuant to
Section 4.01(a)(ii) above.
(d) 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 of
Certificates 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.
(e) 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.
(f) 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.
(g) 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(g) 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(g). 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-III Certificateholders all unclaimed funds and other assets which remain
subject hereto.
(h) 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 provide or make available,
either in electronic format or by first-class 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 Regular Certificates and
to the Rating Agencies 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 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 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 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 Regular Certificates for such
Distribution Date;
(x) the aggregate amount of Distributable Certificate Interest payable
in respect of each Class of 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 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 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 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 Original 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 provide or make
available, either in electronic format or by first-class mail, to such
Certificateholders and Certificate Owners and to the Rating Agencies, 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 provide or make available, either in
electronic format or by first-class mail, to such Certificateholders and
Certificate Owners and to the Rating Agencies, 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 or make available, either in electronic format or by
first-class mail, 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 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, Class R-II and Class R-III 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, Class R-II and Class R-III 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 fax on demand service. In addition, the Trustee will make available each
month, to any interested party, the Servicer Reports on the Trustee's Website,
which shall initially be located at "www.ctslink.com/cmbs". The Trustee's
electronic bulletin board 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. For assistance with the above-mentioned
services, interested parties may call (301) 815-6600.
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.
(a) 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, the Special Servicer and each Rating
Agency, 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 105 days (or 180 days, in the case of annual operating information)
following the end of each calendar quarter, commencing with the calendar quarter
ended December 31, 1998 the Master Servicer shall deliver to the Trustee and
each Rating Agency, 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, by 10:00 a.m. on the Distribution Date or in any event by
such time as shall be required in order to make the required distribution on
such Distribution Date, 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 and Class A-2 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, to the extent not covered by reductions in distributions of interest
pursuant to the allocations set forth in Section 4.01(b).
(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 II Uncertificated Regular
Interests as a write-off and shall be allocated among the Class MA-1, Class
MA-2, Class MB, Class MC, Class MD, Class ME and Class MF Uncertificated
Interests in the same priority as their respective Classes of Corresponding
Certificates pursuant to Section 4.04(a). 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 among the Class
LA-1, Class LA-2, 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).
SECTION 4.05 Interest Reserve Account.
(a) The Trustee shall establish and maintain the Interest Reserve Account
in the Trustee's name for the benefit of the Certificateholders. The Interest
Reserve Account shall be established and maintained as an Eligible Account,
which the Trustee may (but shall not be obligated to) invest in Permitted
Investments in accordance with Section 3.06. On each Master Servicer Remittance
Date occurring in February and each Master Servicer Remittance Date in January
of any year which is not a leap year in or after the year in which an Interest
Reserve Event has occurred, and so long as the Class A-2 Certificates remain
outstanding, the Trustee shall withdraw from the REMIC III Distribution Account,
in respect of each Mortgage Loan which accrues interest on an Actual/360 Basis,
for deposit into the Interest Reserve Account, an amount equal to one day's
interest at the related Net Mortgage Rate on the Stated Principal Balance of
each such Mortgage Loan as of the Due Date in the month preceding the month in
which such Master Servicer Remittance Date occurs (as calculated by the Master
Servicer, who shall notify the Trustee of such amount on or prior to the related
Master Servicer Remittance Date), to the extent a Monthly Payment or P&I Advance
is made in respect thereof (all amounts so deposited in any consecutive January
(if applicable) and February, "Withheld Amounts"). On or prior to the Master
Servicer Remittance Date in March of each calendar year, the Trustee shall
transfer to the REMIC III Distribution Account the aggregate of all Withheld
Amounts on deposit in the Interest Reserve Account.
(b) The Master Servicer shall provide written notice to the Trustee of the
occurrence of an Interest Reserve Event on or prior to the related Master
Servicer Remittance Date.
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-15; 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 Regular Certificates shall
initially be held and transferred through the book-entry facilities of the
Depository. The 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 Sequel 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 Original Closing Date or the Sequel
Closing Date shall, in any event, be dated the Original Closing Date or the
Sequel Closing Date, as the case may be.
(c) Any Definitive Certificates shall be printed, typewritten, lithographed
or engraved or produced by any combination of these methods or may be produced
in any other manner permitted by the rules of any securities exchange on which
any of the Certificates may be listed, or as may, consistently herewith, be
determined by the officers executing such Certificates, as evidenced by their
execution thereof.
SECTION 5.02 Registration of Transfer and Exchange of Certificates.
(i) 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 Original 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.
(ii) 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.
(iii) 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 (except with respect to a Residual Certificate) 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).
(iv) (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 shall
promptly notify the Trustee and the REMIC Administrator of any change
or impending change in its status as a Permitted Transferee.
(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 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 Original 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) As of the Sequel Closing Date, the Class A, Class X, Class B, Class C,
Class D, Class E and Class F Certificates, and as of the Original Closing Date,
the Class G, Class H, Class J and Class K Certificates shall initially be issued
as one or more Certificates registered in the name of the Depository or its
nominee and, except as provided in subsection (c) below, transfer of such
Certificates may not be registered by the Certificate Registrar unless such
transfer is to a successor Depository that agrees to hold such Certificates for
the respective Certificate Owners with Ownership Interests therein. Such
Certificate Owners shall hold and transfer their respective Ownership Interests
in and to such Certificates through the book-entry facilities of the Depository
and, except as provided in subsection (c) below, shall not be entitled to 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.
(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.
ARTICLE VI
THE DEPOSITOR, THE MORTGAGE LOAN SELLER, THE ADDITIONAL
WARRANTING PARTY, THE MASTER SERVICER, THE SPECIAL SERVICER
AND THE REMIC ADMINISTRATOR
SECTION 6.01 Liability of the Depositor, the Mortgage Loan Seller, the
Additional Warranting Party, the Master Servicer, the
Special Servicer and the REMIC Administrator.
The Depositor, the Mortgage Loan Seller, the Additional Warranting Party,
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 Additional Warranting Party, 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 Additional Warranting Party, the
Master Servicer, the Special Servicer or the REMIC
Administrator.
Subject to the following paragraph, the Depositor, the Mortgage Loan
Seller, the Additional Warranting Party, 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 Additional Warranting Party,
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 Additional Warranting Party, 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 Additional Warranting Party, the Master Servicer, the Special
Servicer or the REMIC Administrator, shall be the successor of the Depositor,
the Mortgage Loan Seller, the Additional Warranting Party, 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
or the Additional Warranting Party 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).
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, 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, 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, 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, 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.
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 and the Interest Reserve Account on any Master
Servicer Remittance Date, the full amount of any Master Servicer Remittance
Amount and Withheld Amounts, respectively, 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.
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, the Interest
Reserve 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 and "AA"
by S&P (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 Additional Warranting Party, 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 Additional Warranting Party, 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 Additional Warranting Party, 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 Additional Warranting Party, 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 Additional Warranting Party, 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
Additional Warranting Party, 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 Additional Warranting Party (at the direction of
and on behalf of 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; provided the Trustee shall have no liability for the
actions or inaction of a separate trustee or co-trustee which do not comply with
the provisions of Section 8.10(b).
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, the Additional Warranting Party 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. Any such Custodian (other than the Trustee or an Affiliate of
the Trustee) shall maintain the same errors and omissions insurance as required
of the Master Servicer pursuant to Section 3.07(c).
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 Original Closing Date pursuant to Section
3.13, (B) all accountants' reports delivered to the Trustee since the Original
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.
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 Additional Warranting Party, 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, REMIC II and REMIC III 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 and the REMIC II Uncertificated 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-III 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, REMIC II and
REMIC III) 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, REMIC II or REMIC III as defined in
Section 860F of the Code or cause REMIC I, REMIC II or REMIC III 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, REMIC II and REMIC III 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, REMIC II and REMIC III 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, REMIC II and REMIC III in accordance
with the terms and conditions of this Agreement, which authorization shall be
binding upon all successor Certificateholders.
ARTICLE X
ADDITIONAL REMIC PROVISIONS
SECTION 10.01 REMIC Administration.
(a) The REMIC Administrator shall elect to treat each of REMIC I, REMIC II
and REMIC III 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 interests"
(within the meaning of Section 860G(a)(2) of the Code), in REMIC I. The REMIC II
Regular Interests are hereby designated as the "regular interests" (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 interests" (within the meaning
of Section 860G(a)(2) of the Code), in REMIC II. The New Certificates are hereby
designated as the "regular interests" (within the meaning of Section 860G(a)(1)
of the Code), and the Class R-III Certificates are hereby designated as the sole
Class of "residual interests" (within the meaning of Section 860G(a)(2) of the
Code), in REMIC III. 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, REMIC II or REMIC III (within the meaning of Treasury Regulations
Section 1.860D-1(b)(1)).
(c) The Original 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 Sequel Closing Date is hereby designated as the "startup day" of REMIC
III 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, the REMIC II Regular
Interests and the REMIC III Regular Certificates is June 20, 2023, 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, REMIC II and REMIC III 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, REMIC II or REMIC III, enter into settlement
agreements with any governmental taxing agency, extend any statute of
limitations relating to any tax item of REMIC I, REMIC II or REMIC III, and
otherwise act on behalf of each of REMIC I, REMIC II and REMIC III 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, REMIC II and REMIC III. 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, REMIC II and REMIC
III. 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,
REMIC II and REMIC III 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 and the IRS, such
information as is necessary for the application of any tax relating to the
transfer of a Residual Certificate to any Person who is a Disqualified
Organization; (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, REMIC II and REMIC III.
(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, REMIC II and REMIC III 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 any of REMIC
I, REMIC II or REMIC III 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 any 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, REMIC II or REMIC III, or causing
REMIC I, REMIC II or REMIC III 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, REMIC II or REMIC III 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, REMIC II or REMIC III,
including, without limitation, "prohibited transactions" taxes as defined in
Section 860F(a)(2) of the Code, any taxes on contributions to REMIC I, REMIC II
or REMIC III 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, REMIC II and REMIC III 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. Such records with respect to REMIC II shall include, for each
Distribution date, the applicable Uncertificated Principal Balance, REMIC II
Remittance Rate, and each category of distribution on or with respect to the
REMIC II Uncertificated Regular Interests.
(j) Following the Startup Day therefor, the Trustee shall not accept any
contributions of assets to REMIC I, REMIC II or REMIC III 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 or the Additional Warranting Party
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, REMIC II or REMIC
III, 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, REMIC II or REMIC III
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, REMIC II or REMIC III 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, REMIC II or REMIC III will receive
a fee or other compensation for services or, to the extent it is within the
control of such Person, permit REMIC I, REMIC II or REMIC III 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, REMIC II and REMIC III 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 Original 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.
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, REMIC II or
REMIC III 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, REMIC II or REMIC III; (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 Additional Warranting Party, 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. For purposes of this Section 11.01(b), a
Class of Certificates is an "affected Class" if and only if it would, as the
result of any such amendment, experience any of the effects described in clauses
(i), (ii) and (iii) of this Section 11.01(b).
(c) At the direction of the Holders of Certificates entitled to 100% of the
Voting Rights allocated to the affected Classes, and with the agreement of all
of the parties hereto (none of which shall withhold its agreement unless its
obligations hereunder would be materially increased), the Agreement shall be
amended 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, including without limitation,
(i) to cause such Classes to be restructured, (ii) to create in connection with
any restructuring one or more new classes of Certificates, which may include,
without limitation, one or more classes of Certificates entitled to payments of
principal on a priority basis from collections in respect of some or all of the
Multifamily Loans, (iii) to make in connection with any such restructuring one
or more additional REMIC elections with respect to the Trust Fund and (iv) to
provide for the book-entry registration of any such existing or newly created
classes of Certificates. For purposes of this Section 11.01(c), a Class of
Certificates is an "affected Class" if and only if it would, as the result of
any such amendment, experience any of the effects described in clauses (i), (ii)
and (iii) of Section 11.01(b). Any restructuring pursuant to this Section
11.01(c) shall require the prior written approval of each Rating Agency and
confirmation of the ratings of each such Class of Certificates (taking into
account such restructuring), including confirmation that such restructuring will
not result in the withdrawal, downgrade or qualification of the ratings then
assigned to the Class G, Class H, Class J and Class K Certificates.
(d) 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, REMIC II or REMIC III pursuant to the REMIC
Provisions or cause REMIC I, REMIC II or REMIC III to fail to qualify as a REMIC
at any time that any Certificates are outstanding.
(e) Promptly after the execution of any such amendment, the Trustee shall
furnish a copy of the amendment to each Certificateholder.
(f) 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.
(g) 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.
(h) 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,
BankAmerica 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 Additional Warranting Party, Bank of America NT&SA, Jamboree
Center Suite 500, 5 Park Plaza, Irvine, California 92714, Attention: Conrad
Andersen, telecopy number (949) 260-5642 (with a copy to Bank of America
NT&SA-Legal, 555 S. Flower Street, 8th Floor, Los Angeles, California 90071,
Attention: Ted Honold, telecopy number (213) 228-5344); (4) in the case of the
Master Servicer, Midland Loan Services, Inc., 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)
(5) 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; (6) 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 1998-2, telecopy number (410) 884-2360; and (7) 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; and (B) Standard & Poor's Ratings Services,
Inc., 25 Broadway, New York, New York 10004, Attention: Commercial Mortgage
Group Surveillance Manager, telecopy number (212) 412-0539, or as to each such
Person such other address as may hereafter be furnished by such Person to the
parties hereto in writing. Any communication required or permitted to be
delivered to a Certificateholder shall be deemed to have been duly given when
mailed first class, postage prepaid, to the address of such Holder as shown in
the Certificate Register.
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 or the Additional Warranting Party, as applicable, 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 each Rating Agency on a monthly
basis, to the extent not made available on the Trustee's Website, copies of the
statements to the Holders of the 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.
SECTION 11.10 Standing Requests for Information.
For the avoidance of doubt, it is noted that to the extent that any Rating
Agency, or any Holder of a Class F, Class G, Class H, Class J or Class K
Certificate, is stated herein to be entitled to obtain from the Master Servicer
or the Special Servicer, upon request, any particular report or other item of
information obtained or prepared with respect to the Mortgage Loans by the
parties to this Agreement in the course of their performance hereof, such
request by such Person may take the form of a standing request to the Master
Servicer or the Special Servicer, as the case may be, to receive all such
reports or items until further notice.
<PAGE>
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: /s/ James E. Naumann
---------------------------------
Name: James E. Naumann
Title: Senior Vice President
NATIONSBANK, N.A.,
Mortgage Loan Seller
By: /s/ James E. Naumann
---------------------------------
Name: James E. Naumann
Title: Senior Vice President
BANK OF AMERICA NT&SA,
Additional Warranting Party
By: /s/ Anita N. Roglich
---------------------------------
Name: Anita N. Roglich
Title: Vice President
MIDLAND LOAN SERVICES, INC.,
Master Servicer
By: /s/ Leon E. Bergman
---------------------------------
Name: Leon E. Bergman
Title: Excecutive Vice President
LENNAR PARTNERS, INC.,
Special Servicer
By: /s/ Jeff Krasnoff
---------------------------------
Name: Jeff Krasnoff
Title: President
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION,
Trustee and REMIC Administrator
By: /s/ Leslie A. Gaskill
---------------------------------
Name: Leslie A. Gaskill
Title: Vice President
<PAGE>
STATE OF NORTH CAROLINA )
) ss.:
COUNTY OF MECKLENBURG )
On the 16th day of November, 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.
/s/ Harvetta M. Finley
---------------------------------
Notary Public
[Notarial Seal]
My commission expires: April 14, 2002
<PAGE>
STATE OF CALIFORNIA )
) ss.:
COUNTY OF LOS ANGELES )
On the 16th day of November, 1998, before me, a notary public in and for
said State, personally appeared Anita N. Roglich known to me to be a Vice
President of BANK OF AMERICA NT&SA, 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.
/s/ Sharon Lee Carr
---------------------------------
Notary Public
[Notarial Seal]
My commission expires: May 8, 2000
<PAGE>
STATE OF MISSOURI )
) ss.:
COUNTY OF JACKSON )
On the 16th day of November, 1998, before me, a notary public in and for
said State, personally appeared Leon E. Bergman known to me to be a Executive
Vice President of MIDLAND LOAN SERVICES, INC., 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.
/S/ Debra K. Miller
---------------------------------
Notary Public
[Notarial Seal]
My commission expires: December 5, 1999
<PAGE>
STATE OF FLORIDA )
) ss.:
COUNTY OF MIAMI-DADE )
On the 13th day of November, 1998, before me, the undersigned, a Notary
Public in and for the Sate of Florida duly commissioned and sworn, personally
appeared Jeff Krasnoff to me known who, by me, duly sworn, did depose and
acknowledge before me and say that he is a President of Lennar LENNAR PARTNERS,
INC., a Florida corporation, the corporation described in and that executed the
foregoing instrument; and that he signed his name thereto under authority of the
board of directors of said corporation and on behalf of such corporation.
WITNESS my hand and seal hereto affixed the day and year first above
written.
/s/ Geovanella Gazo
---------------------------------
Print Name: Geovanella Gazo
NOTARY PUBLIC, State of Florida
Serial No., if any:
[Notarial Seal]
<PAGE>
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 17th day of November, 1998, before me, a notary public in and for
said State, personally appeared Leslie A. Gaskill, 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.
/s/ Yariv Katz
---------------------------------
Notary Public
[Notarial Seal]
My commission expires:June 9, 1999
<PAGE>
Exhibit A-1
Form of Class A-1 Certificate
CLASS A-1 COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 1998-2
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 Principal Balance of
6.001% per annum this Certificate as of the
Issue Date: $_______________
Date of Amended and Restated Pooling
and Servicing Agreement: November 1, 1998 Class Principal Balance of all
the Class A-1 Certificates as of
Cut-off Date: September 1, 1998 the Issue Date: $429,503,407
Issue Date: November 19, 1998 Approximate Aggregate unpaid
principal balance of the
First Distribution Date: Mortgage Pool as of the Cut-off
December 21, 1998 Date, after deducting payments
of principal due on or before
Master Servicer: such date (the "Initial Pool
Midland Loan Services, Inc. Balance"): $1,586,087,324
Trustee and REMIC Administrator:
Special Servicer: Norwest Bank Minnesota, National
Lennar Partners, Inc. Association
Mortgage Loan Seller: Additional Warranting Party:
NationsBank, N.A. Bank of America NT&SA
Certificate No. A-1-___ CUSIP No. [_______________]
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, INC., 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 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.
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 a Pooling and Servicing
Agreement, dated as specified above, as amended (the "Agreement"), among
NationsLink Funding Corporation, as Depositor, and the Mortgage Loan Seller,
Additional Warranting Party, 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.
Prior to due presentment of this Certificate for registration of transfer,
the Depositor, the Mortgage Loan Seller, the Additional Warranting Party, 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 Additional Warranting
Party, 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 Additional Warranting Party, 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 Additional Warranting Party, 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, REMIC II or REMIC III 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 1998-2
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 Principal Balance of
6.476% per annum this Certificate as of the
Issue Date: $_______________
Date of Amended and Restated Pooling
and Servicing Agreement: November 1, 1998 Class Principal Balance of all
the Class A-2 Certificates as of
Cut-off Date: September 1, 1998 the Issue Date: $676,635,062
Issue Date: November 19, 1998 Approximate Aggregate unpaid
principal balance of the
First Distribution Date: Mortgage Pool as of the Cut-off
December 21, 1998 Date, after deducting payments
of principal due on or before
Master Servicer: such date (the "Initial Pool
Midland Loan Services, Inc. Balance"): $1,586,087,324
Trustee and REMIC Administrator:
Special Servicer: Norwest Bank Minnesota, National
Lennar Partners, Inc. Association
Mortgage Loan Seller: Additional Warranting Party:
NationsBank, N.A. Bank of America NT&SA
Certificate No. A-2-__ CUSIP No. [_______________]
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, INC., 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 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.
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 a Pooling and Servicing
Agreement, dated as specified above, as amended (the "Agreement"), among
NationsLink Funding Corporation, as Depositor, and the Mortgage Loan Seller,
Additional Warranting Party, 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.
Prior to due presentment of this Certificate for registration of transfer,
the Depositor, the Mortgage Loan Seller, the Additional Warranting Party, 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 Additional Warranting
Party, 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 Additional Warranting Party, 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 Additional Warranting Party, 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, REMIC II or REMIC III 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 X Certificate
CLASS X COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 1998-2
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 Notional Amount of
Variable this Certificate as of the
Issue Date: $_______________
Date of Amended and Restated Pooling
and Servicing Agreement: November 1, 1998 Class Notional Amount of all the
Class X Certificates as of the
Cut-off Date: September 1, 1998 Issue Date: $1,586,087,324
Issue Date: November 19, 1998 Approximate Aggregate unpaid
principal balance of the
First Distribution Date: Mortgage Pool as of the Cut-off
December 21, 1998 Date, after deducting payments
of principal due on or before
Master Servicer: such date (the "Initial Pool
Midland Loan Services, Inc. Balance"): $1,586,087,324
Trustee and REMIC Administrator:
Special Servicer: Norwest Bank Minnesota, National
Lennar Partners, Inc. Association
Mortgage Loan Seller: Additional Warranting Party:
NationsBank, N.A. Bank of America NT&SA
Certificate No. X-__ CUSIP No. [_______________]
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, INC., 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 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.
THIS CERTIFICATE IS ISSUED ON NOVEMBER 19, 1998, AT AN ISSUE PRICE OF 4.56061%
OF THE INITIAL CLASS X 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 THAT THIS CERTIFICATE PAYS IN ACCORDANCE WITH PROJECTED CASH FLOWS
REFLECTING THE PREPAYMENT ASSUMPTION OF ZERO: (I) THE AMOUNT OF OID AS A
PERCENTAGE OF THE INITIAL CLASS X NOTIONAL AMOUNT IS APPROXIMATELY 2.71854%; AND
(II) THE ANNUAL YIELD TO MATURITY OF THIS CERTIFICATE, COMPOUNDED MONTHLY, IS
APPROXIMATELY 10.11%. THERE IS NO SHORT FIRST ACCRUAL PERIOD.
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 a Pooling and Servicing Agreement, dated as specified above, as
amended (the "Agreement"), among NationsLink Funding Corporation, as Depositor,
and the Mortgage Loan Seller, Additional Warranting Party, 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.
Prior to due presentment of this Certificate for registration of transfer,
the Depositor, the Mortgage Loan Seller, the Additional Warranting Party, 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 Additional Warranting
Party, 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 Additional Warranting Party, 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 Additional Warranting Party, 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, REMIC II or REMIC III 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 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 B Certificate
CLASS B COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 1998-2
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 Principal Balance of
Variable this Certificate as of the
Issue Date: $_______________
Date of Amended and Restated Pooling
and Servicing Agreement: November 1, 1998 Class Principal Balance of all
the Class B Certificates as of
Cut-off Date: September 1, 1998 the Issue Date: $79,304,366
Issue Date: November 19, 1998 Approximate Aggregate unpaid
principal balance of the
First Distribution Date: Mortgage Pool as of the Cut-off
December 21, 1998 Date, after deducting payments
of principal due on or before
Master Servicer: such date (the "Initial Pool
Midland Loan Services, Inc. Balance"): $1,586,087,324
Trustee and REMIC Administrator:
Special Servicer: Norwest Bank Minnesota, National
Lennar Partners, Inc. Association
Mortgage Loan Seller: Additional Warranting Party:
NationsBank, N.A. Bank of America NT&SA
Certificate No. B-____ CUSIP No. [_______________]
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, INC., 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.
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.
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 a Pooling and Servicing
Agreement, dated as specified above, as amended (the "Agreement"), among
NationsLink Funding Corporation, as Depositor, and the Mortgage Loan Seller,
Additional Warranting Party, 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.
Prior to due presentment of this Certificate for registration of transfer,
the Depositor, the Mortgage Loan Seller, the Additional Warranting Party, 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 Additional Warranting
Party, 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 Additional Warranting Party, 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 Additional Warranting Party, 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, REMIC II or REMIC III 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-5
Form of Class C Certificate
CLASS C COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 1998-2
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 Principal Balance of
Variable this Certificate as of the
Issue Date: $_______________
Date of Amended and Restated Pooling
and Servicing Agreement: November 1, 1998 Class Principal Balance of all
the Class C Certificates as of
Cut-off Date: September 1, 1998 the Issue Date: $95,165,239
Issue Date: September 25, 1998 Approximate Aggregate unpaid
principal balance of the
First Distribution Date: Mortgage Pool as of the Cut-off
December 21, 1998 Date, after deducting payments
of principal due on or before
Master Servicer: such date (the "Initial Pool
Midland Loan Services, Inc. Balance"): $1,586,087,324
Trustee and REMIC Administrator:
Special Servicer: Norwest Bank Minnesota, National
Lennar Partners, Inc. Association
Mortgage Loan Seller: Additional Warranting Party:
NationsBank, N.A. Bank of America NT&SA
Certificate No. C-__ CUSIP No. [_______________]
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, INC., 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.
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.
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 a Pooling and Servicing
Agreement, dated as specified above, as amended (the "Agreement"), among
NationsLink Funding Corporation, as Depositor, and the Mortgage Loan Seller,
Additional Warranting Party, 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.
Prior to due presentment of this Certificate for registration of transfer,
the Depositor, the Mortgage Loan Seller, the Additional Warranting Party, 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 Additional Warranting
Party, 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 Additional Warranting Party, 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 Additional Warranting Party, 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, REMIC II or REMIC III 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-6
Form of Class D Certificate
CLASS D COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 1998-2
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 Principal Balance of
Variable this Certificate as of the
Issue Date: $_______________
Date of Amended and Restated Pooling
and Servicing Agreement: November 1, 1998 Class Principal Balance of all
the Class D Certificates as of
Cut-off Date: September 1, 1998 the Issue Date: $83,269,584
Issue Date: November 19, 1998 Approximate Aggregate unpaid
principal balance of the
First Distribution Date: Mortgage Pool as of the Cut-off
December 21, 1998 Date, after deducting payments
of principal due on or before
Master Servicer: such date (the "Initial Pool
Midland Loan Services, Inc. Balance"): $1,586,087,324
Trustee and REMIC Administrator:
Special Servicer: Norwest Bank Minnesota, National
Lennar Partners, Inc. Association
Mortgage Loan Seller: Additional Warranting Party:
NationsBank, N.A. Bank of America NT&SA
Certificate No. D -___ CUSIP No. [_______________]
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, INC., 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.
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.
THIS CERTIFICATE IS ISSUED ON NOVEMBER 19, 1998, AND BASED ON ITS ISSUE PRICE OF
93.79525%, INCLUDING ACCRUED INTEREST, AND A STATED REDEMPTION PRICE AT MATURITY
EQUAL TO ITS INITIAL PRINCIPAL BALANCE, IS ISSUED WITH ORIGINAL ISSUE DISCOUNT
("OID") FOR FEDERAL INCOME TAX PURPOSES. ASSUMING THAT THIS CERTIFICATE PAYS IN
ACCORDANCE WITH PROJECTED CASH FLOWS REFLECTING THE PREPAYMENT ASSUMPTION OF
ZERO USED TO PRICE THIS CERTIFICATE: (I) THE AMOUNT OF OID AS A PERCENTAGE OF
THE INITIAL PRINCIPAL BALANCE OF THIS CERTIFICATE IS APPROXIMATELY 6.20475%; AND
(II) THE ANNUAL YIELD TO MATURITY OF THIS CERTIFICATE, COMPOUNDED MONTHLY, IS
APPROXIMATELY 7.98%. THERE IS NO SHORT FIRST ACCRUAL PERIOD.
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 a Pooling and Servicing
Agreement, dated as specified above, as amended (the "Agreement"), among
NationsLink Funding Corporation, as Depositor, and the Mortgage Loan Seller,
Additional Warranting Party, 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.
Prior to due presentment of this Certificate for registration of transfer,
the Depositor, the Mortgage Loan Seller, the Additional Warranting Party, 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 Additional Warranting
Party, 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 Additional Warranting Party, 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 Additional Warranting Party, 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, REMIC II or REMIC III 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-7
Form of Class E Certificate
CLASS E COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 1998-2
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 Principal Balance of
Variable this Certificate as of the
Issue Date: $_______________
Date of Amended and Restated Pooling
and Servicing Agreement: November 1, 1998 Class Principal Balance of all
the Class E Certificates as of
Cut-off Date: September 1, 1998 the Issue Date: $35,686,964
Issue Date: November 19, 1998 Approximate Aggregate unpaid
principal balance of the
First Distribution Date: Mortgage Pool as of the Cut-off
December 21, 1998 Date, after deducting payments
of principal due on or before
Master Servicer: such date (the "Initial Pool
Midland Loan Services, Inc. Balance"): $1,586,087,324
Trustee and REMIC Administrator:
Special Servicer: Norwest Bank Minnesota, National
Lennar Partners, Inc. Association
Mortgage Loan Seller: Additional Warranting Party:
NationsBank, N.A. Bank of America NT&SA
Certificate No. E-_____ CUSIP No. [_______________]
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, INC., 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.
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.
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.
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.
THIS CERTIFICATE IS ISSUED ON NOVEMBER 19, 1998, AND BASED ON ITS ISSUE PRICE OF
90.39625%, INCLUDING ACCRUED INTEREST, AND A STATED REDEMPTION PRICE AT MATURITY
EQUAL TO ITS INITIAL PRINCIPAL BALANCE, IS ISSUED WITH ORIGINAL ISSUE DISCOUNT
("OID") FOR FEDERAL INCOME TAX PURPOSES. ASSUMING THAT THIS CERTIFICATE PAYS IN
ACCORDANCE WITH PROJECTED CASH FLOWS REFLECTING THE PREPAYMENT ASSUMPTION OF
ZERO USED TO PRICE THIS CERTIFICATE: (I) THE AMOUNT OF OID AS A PERCENTAGE OF
THE INITIAL PRINCIPAL BALANCE OF THIS CERTIFICATE IS APPROXIMATELY 9.60375%; AND
(II) THE ANNUAL YIELD TO MATURITY OF THIS CERTIFICATE, COMPOUNDED MONTHLY, IS
APPROXIMATELY 8.52%. THERE IS NO SHORT FIRST ACCRUAL PERIOD.
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 a Pooling and Servicing
Agreement, dated as specified above, as amended (the "Agreement"), among
NationsLink Funding Corporation, as Depositor, and the Mortgage Loan Seller,
Additional Warranting Party, 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.
Prior to due presentment of this Certificate for registration of transfer,
the Depositor, the Mortgage Loan Seller, the Additional Warranting Party, 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 Additional Warranting
Party, 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 Additional Warranting Party, 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 Additional Warranting Party, 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, REMIC II or REMIC III 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-8
Form of Class F Certificate
CLASS F COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 1998-2
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 Principal Balance of
Variable this Certificate as of the
Issue Date: $_______________
Date of Amended and Restated Pooling Class Principal Balance of all
and Servicing Agreement: November 1, 1998 the Class F Certificates as of
the Issue Date: $87,234,802
Cut-off Date: September 1, 1998
Issue Date: November 19, 1998 Approximate Aggregate unpaid
principal balance of the
First Distribution Date: Mortgage Pool as of the Cut-off
December 21, 1998 Date, after deducting payments
of principal due on or before
Master Servicer: such date (the "Initial Pool
Midland Loan Services, Inc. Balance"): $1,586,087,324
Trustee and REMIC Administrator:
Special Servicer: Norwest Bank Minnesota, National
Lennar Partners, Inc. Association
Mortgage Loan Seller: Additional Warranting Party:
NationsBank, N.A. Bank of America NT&SA
Certificate No. F-__ CUSIP No. [_______________]
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, INC., 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.
THIS CERTIFICATE IS ISSUED ON NOVEMBER 19, 1998, AND BASED ON ITS ISSUE PRICE OF
77.32125%, INCLUDING ACCRUED INTEREST, AND A STATED REDEMPTION PRICE AT MATURITY
EQUAL TO ITS INITIAL PRINCIPAL BALANCE, IS ISSUED WITH ORIGINAL ISSUE DISCOUNT
("OID") FOR FEDERAL INCOME TAX PURPOSES. ASSUMING THAT THIS CERTIFICATE PAYS IN
ACCORDANCE WITH PROJECTED CASH FLOWS REFLECTING THE PREPAYMENT ASSUMPTION OF
ZERO USED TO PRICE THIS CERTIFICATE: (I) THE AMOUNT OF OID AS A PERCENTAGE OF
THE INITIAL PRINCIPAL BALANCE OF THIS CERTIFICATE IS APPROXIMATELY 22.67875%;
AND (II) THE ANNUAL YIELD TO MATURITY OF THIS CERTIFICATE, COMPOUNDED MONTHLY,
IS APPROXIMATELY 10.36%. THERE IS NO SHORT FIRST ACCRUAL PERIOD.
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 a Pooling and Servicing
Agreement, dated as specified above, as amended (the "Agreement"), among
NationsLink Funding Corporation, as Depositor, and the Mortgage Loan Seller,
Additional Warranting Party, 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.
Prior to due presentment of this Certificate for registration of transfer,
the Depositor, the Mortgage Loan Seller, the Additional Warranting Party, 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 Additional Warranting
Party, 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 Additional Warranting Party, 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 Additional Warranting Party, 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, REMIC II or REMIC III 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>
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 G Certificate
CLASS G COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 1998-2
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 Principal Balance of
______% per annum this Certificate as of the
Issue Date: $_______________
Date of Pooling and Servicing
Agreement: September 1, 1998 Class Principal Balance of all
the Class G Certificates as of
Cut-off Date: September 1, 1998 the Issue Date: $11,895,654
Issue Date: September 25, 1998 Approximate Aggregate unpaid
principal balance of the
First Distribution Date: Mortgage Pool as of the Cut-off
October 20, 1998 Date, after deducting payments
of principal due on or before
Master Servicer: such date (the "Initial Pool
Midland Loan Services, Inc. Balance"): $1,586,087,324
Trustee and REMIC Administrator:
Special Servicer: Norwest Bank Minnesota, National
Lennar Partners, Inc. Association
Mortgage Loan Seller: Additional Warranting Party:
NationsBank, N.A. Bank of America NT&SA
Certificate No. G-__ CUSIP No. [_______________]
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, INC., 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.
THIS CERTIFICATE IS ISSUED ON SEPTEMBER 25, 1998, AND BASED ON ITS ISSUE PRICE
OF 65.677%, 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 34.39211%; (II) THE
ANNUAL YIELD TO MATURITY OF THIS CERTIFICATE, COMPOUNDED MONTHLY, IS
APPROXIMATELY 9.34%; AND (III) THE AMOUNT OF OID ALLOCABLE TO THE SHORT FIRST
ACCRUAL PERIOD (SEPTEMBER 25, 1998 TO OCTOBER 20, 1998) AS A PERCENTAGE OF THE
INITIAL PRINCIPAL BALANCE OF THIS CERTIFICATE, CALCULATED USING THE EXACT
METHOD, IS APPROXIMATELY 0.07832%.
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 a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among NationsLink Funding
Corporation, as Depositor, and the Mortgage Loan Seller, Additional Warranting
Party, 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 Additional Warranting Party, 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 Additional Warranting
Party, 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 Additional Warranting Party, 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 Additional Warranting Party, 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>
SCHEDULE A
Certificate Balance of
Definitive Certificates
exchanged or transferred for,
or issued in exchange for
or upon transfer of, Remaining Principal
an interest in this Amount of Notation
Date Book-Entry Certificate Book-Entry Certificate Made by
- --------- ----------------------------- ---------------------- --------
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<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-10
Form of Class H Certificate
CLASS H COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 1998-2
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 Principal Balance of
______% per annum this Certificate as of the
Issue Date: $_______________
Date of Pooling and Servicing
Agreement: September 1, 1998 Class Principal Balance of all
the Class H Certificates as of
Cut-off Date: September 1, 1998 the Issue Date: $31,721,746
Issue Date: September 25, 1998 Approximate Aggregate unpaid
principal balance of the
First Distribution Date: Mortgage Pool as of the Cut-off
October 20, 1998 Date, after deducting payments
of principal due on or before
Master Servicer: such date (the "Initial Pool
Midland Loan Services, Inc. Balance"): $1,586,087,324
Trustee and REMIC Administrator:
Special Servicer: Norwest Bank Minnesota, National
Lennar Partners, Inc. Association
Mortgage Loan Seller: Additional Warranting Party:
NationsBank, N.A. Bank of America NT&SA
Certificate No. H-___ CUSIP No. [_______________]
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, INC., 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.
THIS CERTIFICATE IS ISSUED ON SEPTEMBER 25, 1998, AND BASED ON ITS ISSUE PRICE
OF 66.903%, 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 33.16611%; (II) THE
ANNUAL YIELD TO MATURITY OF THIS CERTIFICATE, COMPOUNDED MONTHLY, IS
APPROXIMATELY 9.12%; AND (III) THE AMOUNT OF OID ALLOCABLE TO THE SHORT FIRST
ACCRUAL PERIOD (SEPTEMBER 25, 1998 TO OCTOBER 20, 1998) AS A PERCENTAGE OF THE
INITIAL PRINCIPAL BALANCE OF THIS CERTIFICATE, CALCULATED USING THE EXACT
METHOD, IS APPROXIMATELY 0.07611%.
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.
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 a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among NationsLink Funding
Corporation, as Depositor, and the Mortgage Loan Seller, Additional Warranting
Party, 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 Additional Warranting Party, 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 Additional Warranting
Party, 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 Additional Warranting Party, 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 Additional Warranting Party, 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>
SCHEDULE A
Certificate Balance of
Definitive Certificates
exchanged or transferred for,
or issued in exchange for
or upon transfer of, Remaining Principal
an interest in this Amount of Notation
Date Book-Entry Certificate Book-Entry Certificate Made by
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<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 J Certificate
CLASS J COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 1998-2
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 Principal Balance of
______% per annum this Certificate as of the
Issue Date: $_______________
Date of Pooling and Servicing
Agreement: September 1, 1998 Class Principal Balance of all
the Class J Certificates as of
Cut-off Date: September 1, 1998 the Issue Date: $7,930,436
Issue Date: September 25, 1998 Approximate Aggregate unpaid
principal balance of the
First Distribution Date: Mortgage Pool as of the Cut-off
October 20, 1998 Date, after deducting payments
of principal due on or before
Master Servicer: such date (the "Initial Pool
Midland Loan Services, Inc. Balance"): $1,586,087,324
Trustee and REMIC Administrator:
Special Servicer: Norwest Bank Minnesota, National
Lennar Partners, Inc. Association
Mortgage Loan Seller: Additional Warranting Party:
NationsBank, N.A. Bank of America NT&SA
Certificate No. J-__ CUSIP No. [_______________]
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, INC., 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.
THIS CERTIFICATE IS ISSUED ON SEPTEMBER 25, 1998, AND BASED ON ITS ISSUE PRICE
OF 52.845%, 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 47.22411%; (II) THE
ANNUAL YIELD TO MATURITY OF THIS CERTIFICATE, COMPOUNDED MONTHLY, IS
APPROXIMATELY 11.78%; AND (III) THE AMOUNT OF OID ALLOCABLE TO THE SHORT FIRST
ACCRUAL PERIOD (SEPTEMBER 25, 1998 TO OCTOBER 20, 1998) AS A PERCENTAGE OF THE
INITIAL PRINCIPAL BALANCE OF THIS CERTIFICATE, CALCULATED USING THE EXACT
METHOD, IS APPROXIMATELY 0.08472%.
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.
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 a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among NationsLink Funding
Corporation, as Depositor, and the Mortgage Loan Seller, Additional Warranting
Party, 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 Additional Warranting Party, 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 Additional Warranting
Party, 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 Additional Warranting Party, 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 Additional Warranting Party, 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>
SCHEDULE A
Certificate Balance of
Definitive Certificates
exchanged or transferred for,
or issued in exchange for
or upon transfer of, Remaining Principal
an interest in this Amount of Notation
Date Book-Entry Certificate Book-Entry Certificate Made by
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<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-12
Form of Class K Certificate
CLASS K COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 1998-2
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 Principal Balance of
______% per annum this Certificate as of the
Issue Date: $_______________
Date of Pooling and Servicing
Agreement: September 1, 1998 Class Principal Balance of all
the Class K Certificates as of
Cut-off Date: September 1, 1998 the Issue Date: $43,617,407
Issue Date: September 25, 1998 Approximate Aggregate unpaid
principal balance of the
First Distribution Date: Mortgage Pool as of the Cut-off
October 20, 1998 Date, after deducting payments
of principal due on or before
Master Servicer: such date (the "Initial Pool
Midland Loan Services, Inc. Balance"): $1,586,087,324
Trustee and REMIC Administrator:
Special Servicer: Norwest Bank Minnesota, National
Lennar Partners, Inc. Association
Mortgage Loan Seller: Additional Warranting Party:
NationsBank, N.A. Bank of America NT&SA
Certificate No. K-__ CUSIP No. [_______________]
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, INC., 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.
THIS CERTIFICATE IS ISSUED ON SEPTEMBER 25, 1998, AND BASED ON ITS ISSUE PRICE
OF 34.128%, 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 65.94111%; (II) THE
ANNUAL YIELD TO MATURITY OF THIS CERTIFICATE, COMPOUNDED MONTHLY, IS
APPROXIMATELY 17.36%; AND (III) THE AMOUNT OF OID ALLOCABLE TO THE SHORT FIRST
ACCRUAL PERIOD (SEPTEMBER 25, 1998 TO OCTOBER 20, 1998) AS A PERCENTAGE OF THE
INITIAL PRINCIPAL BALANCE OF THIS CERTIFICATE, CALCULATED USING THE EXACT
METHOD, IS APPROXIMATELY 0.06360%.
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.
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 a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among NationsLink Funding
Corporation, as Depositor, and the Mortgage Loan Seller, Additional Warranting
Party, 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 Additional Warranting Party, 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 Additional Warranting
Party, 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 Additional Warranting Party, 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 Additional Warranting Party, 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>
SCHEDULE A
Certificate Balance of
Definitive Certificates
exchanged or transferred for,
or issued in exchange for
or upon transfer of, Remaining Principal
an interest in this Amount of Notation
Date Book-Entry Certificate Book-Entry Certificate Made by
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<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 R-I Certificate
CLASS R-I COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 1998-2
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 Pooling and Servicing Certificate No. R-I-___
Agreement: September 1, 1998
Percentage Interest evidenced by
Cut-off Date: September 1, 1998 this Certificate in the related
Class: ____%
Issue Date: September 25, 1998
Approximate Aggregate unpaid
First Distribution Date: principal balance of the
October 20, 1998 Mortgage Pool as of the Cut-off
Date, after deducting payments
Master Servicer: of principal due on or before
Midland Loan Services, Inc. such date (the "Initial Pool
Balance"): $1,586,087,324
Trustee and REMIC Administrator:
Special Servicer: Norwest Bank Minnesota, National
Lennar Partners, Inc. Association
Mortgage Loan Seller: Additional Warranting Party:
NationsBank, N.A. Bank of America NT&SA
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, INC., 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 INTERNAL
REVENUE CODE OF 1986, AS AMENDED (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.
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 AS SET FORTH IN SECTION 5.02 OF THE AGREEMENT. EACH
TRANSFEREE OF THIS CERTIFICATE, BY ACCEPTANCE HEREOF, IS DEEMED TO HAVE ACCEPTED
THIS CERTIFICATE SUBJECT TO CERTAIN RESTRICTIONS ON TRANSFERABILITY 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 a Pooling and Servicing Agreement,
dated as specified above (the "Agreement"), among NationsLink Funding
Corporation, as Depositor, and the Mortgage Loan Seller, Additional Warranting
Party, 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 Additional Warranting Party, 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 Additional Warranting
Party, 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 Additional Warranting Party, 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 Additional Warranting Party, 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-14
Form of Class R-II Certificate
CLASS R-II COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 1998-2
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 Pooling and Servicing Certificate No. R-II - __
Agreement: September 1, 1998
Cut-off Date: September 1, 1998 Percentage Interest evidenced by
this Certificate in the related
Issue Date: September 25, 1998 Class: _____%
First Distribution Date: Approximate Aggregate unpaid
October 20, 1998 principal balance of the
Mortgage Pool as of the Cut-off
Master Servicer: Date, after deducting payments
Midland Loan Services, Inc. of principal due on or before
such date (the "Initial Pool
Balance"): $1,586,087,324
Special Servicer:
Lennar Partners, Inc. Trustee and REMIC Administrator:
Norwest Bank Minnesota, National
Mortgage Loan Seller: Association
NationsBank, N.A.
Additional Warranting Party:
Bank of America NT&SA
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, INC., 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 INTERNAL
REVENUE CODE OF 1986, AS AMENDED (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.
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 AS SET FORTH IN SECTION 5.02 OF THE AGREEMENT. EACH
TRANSFEREE OF THIS CERTIFICATE, BY ACCEPTANCE HEREOF, IS DEEMED TO HAVE ACCEPTED
THIS CERTIFICATE SUBJECT TO CERTAIN RESTRICTIONS ON TRANSFERABILITY. 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 a Pooling and Servicing Agreement,
dated as specified above (the "Agreement"), among NationsLink Funding
Corporation, as Depositor, and the Mortgage Loan Seller, Additional Warranting
Party, 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 Additional Warranting Party, 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 Additional Warranting
Party, 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 Additional Warranting Party, 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 Additional Warranting Party, 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 A-15
Form of Class R-III Certificate
CLASS R-I COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 1998-2
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 Pooling
and Servicing Agreement: November 1, 1998 Certificate No. R-III-___
Percentage Interest evidenced by
Cut-off Date: September 1, 1998 this Certificate in the related
Class: ____%
Issue Date: November 19, 1998
Approximate Aggregate unpaid
First Distribution Date: principal balance of the
December 21, 1998 Mortgage Pool as of the Cut-off
Date, after deducting payments
Master Servicer: of principal due on or before
Midland Loan Services, Inc. such date (the "Initial Pool
Balance"): $1,586,087,324
Trustee and REMIC Administrator:
Special Servicer: Norwest Bank Minnesota, National
Lennar Partners, Inc. Association
Mortgage Loan Seller: Additional Warranting Party:
NationsBank, N.A. Bank of America NT&SA
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, INC., 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 INTERNAL
REVENUE CODE OF 1986, AS AMENDED (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.
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 AS SET FORTH IN SECTION 5.02 OF THE AGREEMENT. EACH
TRANSFEREE OF THIS CERTIFICATE, BY ACCEPTANCE HEREOF, IS DEEMED TO HAVE ACCEPTED
THIS CERTIFICATE SUBJECT TO CERTAIN RESTRICTIONS ON TRANSFERABILITY 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 a Pooling and Servicing Agreement,
dated as specified above, as amended (the "Agreement"), among NationsLink
Funding Corporation, as Depositor, and the Mortgage Loan Seller, Additional
Warranting Party, 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 Additional Warranting Party, 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 Additional Warranting
Party, 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 Additional Warranting Party, 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 Additional Warranting Party, 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, REMIC II or REMIC III 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-III 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 1998-2
-------------------------------------------------------
Ladies and Gentlemen:
This letter is delivered pursuant to Section 5.02 of the Pooling and
Servicing Agreement dated as of September 1, 1998 (the "Pooling and Servicing
Agreement"), by and among NationsLink Funding Corporation, as Depositor,
NationsBank, N.A., as Mortgage Loan Seller, Bank of America NT&SA, as Additional
Warranting Party, Midland Loan Services, Inc., 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 1998-2 (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:*
_______________
*Purchaser must include one of the following two certifications.
[ ] 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,
resale, pledge or transfer is in compliance with the 1933 Act and other
applicable laws and (z) a written undertaking to reimburse the Trust for any
costs incurred by it in connection with the proposed transfer. The Purchaser
understands that the Certificate (and any subsequent Certificate) has not been
registered under the 1933 Act, by reason of a specified exemption from the
registration provisions of the 1933 Act which depends upon, among other things,
the bona fide nature of the Purchaser's investment intent (or intent to resell
to only certain investors in certain exempted transactions) as expressed herein.
3. The Purchaser has reviewed the Private Placement Memorandum relating to
the Certificates (the "Private Placement Memorandum") and the agreements and
other materials referred to therein and has had the opportunity to ask questions
and receive answers concerning the terms and conditions of the transactions
contemplated by the Private Placement Memorandum.
4. The Purchaser acknowledges that the Certificate (and any Certificate
issued on transfer or exchange thereof) has not been registered or qualified
under the 1933 Act or the securities laws of any State or any other
jurisdiction, and that the Certificate cannot be resold unless it is registered
or qualified thereunder or unless an exemption from such registration or
qualification is available.
5. The Purchaser hereby undertakes to be bound by the terms and conditions
of the Pooling and Servicing Agreement in its capacity as an owner of a
Certificate or Certificates, as the case may be (each, a "Certificateholder"),
in all respects as if it were a signatory thereto. This undertaking is made for
the benefit of the Trust, the Certificate Registrar and all Certificateholders
present and future.
6. The Purchaser will not sell or otherwise transfer any portion of the
Certificate or Certificates, except in compliance with Section 5.02 of the
Pooling and Servicing Agreement.
7. Check one of the following:*
_______________
*Each Purchaser must include one of the two alternative certifications.
[ ] 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).
8. Please make all payments due on the Certificates:**
_______________
**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.
[ ] (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:
<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 1998-2, 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
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 1998-2, Class R-[I]
[II] [III], 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] [III] 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 November 1, 1998,
among NationsLink Funding Corporation, as Depositor, NationsBank, N.A., as
Mortgage Loan Seller, Bank of America NT&SA, as Additional Warranting Party,
Midland Loan Services, Inc., 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 November 1, 1998 (the "Pooling and Servicing
Agreement"), by and among NationsLink Funding Corporation, as Depositor,
NationsBank, N.A., as Mortgage Loan Seller, Bank of America NT&SA, as Additional
Warranting Party, as Midland Loan Services, Inc., 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 1998-2
------------------------------------------------------------
Ladies and Gentlemen:
The undersigned (the "Purchaser") proposes to purchase $____________
initial Certificate Balance of NationsLink Funding Corporation, Commercial
Mortgage Pass-Through Certificates, Series 1998-2, Class __ (the "Certificate")
issued pursuant to that certain Amended and Restated Pooling and Servicing
Agreement, dated as of November 1, 1998 (the "Pooling and Servicing Agreement"),
by and among NationsLink Funding Corporation, as depositor (the "Depositor"),
NationsBank, N.A., as mortgage loan seller, Bank of America NT&SA, as additional
warranting party, Midland Loan Services, Inc., as master servicer (the "Master
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 Master 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.
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>
EXHIBIT G
FORM OF CERTIFICATEHOLDER CONFIRMATION CERTIFICATE
REQUEST BY BENEFICIAL HOLDER
[Date]
Norwest Bank Minnesota, National Association
Three New York Plaza
New York, New York 10004
Attention: Corporate Trust Services (CMBS)
Re: NationsLink Funding Corporation, Series 1998-2
In accordance with the Amended and Restated Pooling and Servicing Agreement
dated as of November 1, 1998 (the "Pooling and Servicing Agreement"), among
NationsLink Funding Corporation ("the "Depositor"), NationsBank, N.A. as
mortgage loan seller, Bank of America NT&SA, as Additional Warranting Party,
Midland Loan Services, Inc., as Master Servicer, Lennar Partners, Inc., as
Special Servicer and Norwest Bank Minnesota, National Association as trustee (in
such capacity, the "Trustee"), with respect to the NationsLink Funding
Corporation, Commercial Mortgage Pass-Through Certificates, Series 1998-C2 (the
"Certificates"), the undersigned hereby certifies and agrees as follows:
1. The undersigned is a beneficial owner of the Class ____ Certificates.
2. The undersigned is requesting the information identified on the
schedule attached hereto pursuant to the Pooling and Servicing
Agreement (the "Information").
3. In consideration of the Trustee's disclosure to the undersigned of the
Information, the undersigned will keep the Information confidential
(except from such outside persons as are assisting it in making the
evaluation described in paragraph 2), and such Information will not,
without the prior written consent of the Trustee, be disclosed by the
undersigned or by its officers, directors, partners employees, agents
or representatives (collectively, the "Representative") in any manner
whatsoever, in whole or in part; provided that the undersigned may
provide all or any part of the Information to any other person or
entity that holds or is contemplating the purchase of any Certificate
or interest therein, but only if such person or entity confirms in
writing such ownership interest or prospective ownership interest and
agrees to keep it confidential.
4. the undersigned will not use or disclose the Information in any manner
which could result in a violation of any provision of the Securities
Act of 1933, as amended, (the "Securities Act"), or the Securities
Exchange Act of 1934, as amended, or would require registration of any
Certificate pursuant to Section 5 of the Securities Act.
5. The undersigned shall be fully liable for any breach of this agreement
by itself or any of its Representatives and shall indemnify the
Depositor, expense incurred thereby with respect to any such breach by
the undersigned or any of its Representatives.
IN WITNESS WHEREOF, the undersigned has caused its name to be signed hereto
by this duly authorized officer, as of the day and year written above.
[BENEFICIAL HOLDER OF A CERTIFICATE]
By: _______________________________
Name:
Title:
<PAGE>
EXHIBIT H
FORM OF PROSPECTIVE PURCHASER CERTIFICATE
[Date]
[TRUSTEE]
Re: NationsLink Funding Corporation, Mortgage Pass-Through Certificates,
Series 1998-2 ("the Certificates").
In accordance with the Amended and Restated Pooling and Servicing Agreement
dated, as of November 1, 1998 ( the "Pooling and Servicing Agreement"), among
NationsLink Funding Corporation ("the "Depositor"), NationsBank, N.A. as
mortgage loan seller, Bank of America NT&SA, as Additional Warranting Party,
Midland Loan Services, Inc., as Master Servicer, Lennar Partners, Inc., as
Special Servicer, and Norwest Bank Minnesota, National Association as trustee
(in such capacity, the "Trustee"), with respect to the NationsLink Funding
Corporation Commercial Mortgage Pass-Through Certificates, Series 1998-2 (the
"Certificates"), the undersigned hereby certifies and agrees as follows:
1. The undersigned is contemplating an investment in the Class ___
Certificates.
2. The undersigned is requesting the information identified on the
schedule attached hereto pursuant to Section 3.15 of the Pooling and
Servicing Agreement (the "Information") for use in evaluating such
possible investment.
3. In consideration of the Trustee's disclosure to the undersigned of the
Information, the undersigned will keep the Information confidential
(except from such outside persons as are assisting it in making the
investment decision described in paragraphs 1 and 2), and such
Information will not, without the prior written consent of the
Trustee, be disclosed by the undersigned or by its officers,
directors, partners employees, agents or representatives
(collectively, the "Representatives") in any manner whatsoever, in
whole or in part.
4. The undersigned will not use or disclose the Information in any manner
which could result in a violation of any provisions of the Securities
Act of 1933, as amended (the "Securities Act"), or the Securities
Exchange Act of 1934, as amended, or would require registration of any
Certificate pursuant to Section 5 of the Securities Act.
5. The undersigned shall be fully liable for any breach of this agreement
by itself or any of its representatives and shall indemnify the
Depositor, the Trustee and the Trust for any loss, liability or
expense incurred thereby with respect to any such breach by the
undersigned or any of its Representatives.
IN WITNESS WHEREOF, the undersigned has caused its name to be signed hereto
by its duly authorized officer, as of the day and year written above.
[PROSPECTIVE PURCHASER]
By: __________________________
Name:
Title:
<PAGE>
SCHEDULE I
MORTGAGE LOAN SCHEDULE
<TABLE>
<CAPTION>
LOAN MORTGAGE ORIGINAL CUT-OFF DATE
SEQUENCE NUMBER PROPERTY ADDRESS CITY STATE ZIP CODE RATE BALANCE BALANCE
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
N001 50752 5101 Park Ave. West New York NJ 07093-2532 7.053 $28,000,000.00 $27,924,913.64
N002 50659 2055 Summerside Drive San Jose CA 95122 7.010 20,100,000.00 20,015,720.06
N003 50958 13110 Kuykendahl Rd. Houston TX 77090 6.760 16,450,000.00 16,427,842.73
N004 50750 5400 E. Williams Blvd. Tucson AZ 85711 6.870 16,400,000.00 16,328,712.88
N005 50925 3950 Patrick Drive Colorado Springs CO 80916 6.820 7,317,000.00 7,307,316.10
N006 50924 1150 University Drive Tempe AZ 85281 6.970 3,241,000.00 3,236,897.95
N007 50923 1502 W. Glendale Ave Phoenix AZ 85021 6.920 3,045,000.00 3,038,537.88
N008 50921 2634 51st Street Phoenix AZ 85035 6.970 2,600,000.00 2,596,709.25
N009 50646 599-621 Front Street Hempstead NY 11550 7.223 3,622,500.00 3,601,474.72
N010 50645 299 Jackson Street Hempstead NY 11550 7.223 3,275,000.00 3,255,991.62
N011 50654 15-35 Elk Street Hempstead NY 11550 7.223 2,640,000.00 2,624,677.24
N012 50644 100 Jerusalem Avenue Hempstead NY 11550-6041 7.223 2,422,500.00 2,408,439.60
N013 50655 357 Jackson Street Hempstead NY 11550 7.223 800,000.00 792,693.76
N014 50656 51 Bell Street Hempstead NY 11550 7.223 640,000.00 634,155.02
B015 3054921 895 Sierra Vista Drive Las Vegas NV 89109 7.254 12,400,000.00 12,375,834.79
N016 50691 1700 Via Pacifica Avenue Corona CA 91720 6.850 12,264,000.00 12,218,675.24
N017 50094 240 Colonial Homes Dr. Atlanta GA 30309 8.255 12,000,000.00 11,908,173.71
N018 50790 1201 West Esplanade Avenue Kenner LA 70065 6.800 11,800,000.00 11,747,786.89
B019 3047180 33300 Mission Blvd Union City CA 94587 6.861 9,950,000.00 9,921,907.90
N020 50971 431 Spring Villas Drive Sparks NV 89431 6.680 8,560,000.00 8,548,199.64
B021 3052107 12725 S.E. 312Th Street Auburn WA 98092 7.236 8,400,000.00 8,378,577.53
N022 50842 315 Fourth Avenue San Diego CA 92101 7.170 8,350,000.00 8,340,059.31
N023 50013 1205 St. Charles St. New Orleans LA 70130 8.730 8,392,000.00 8,308,396.57
N024 50920 275 Isabell Road Reno NV 89509 6.860 8,142,000.00 8,135,139.54
N025 50936 3311 53rd Avenue North Brooklyn Center MN 55429 6.790 8,100,000.00 8,089,184.97
N026 50844 2210 Miguel Chavez Road Santa Fe NM 87505-6923 6.980 8,037,500.00 8,020,663.69
N027 50831 414 Point Return Drive Manchester MO 63021-5798 6.900 7,600,000.00 7,565,939.72
B028 3052032 2901-2993 1/4, Clairmont
Drive, 4902-5030 San Diego CA 92117 6.864 7,500,000.00 7,478,841.89
N029 50836 2 Laurel Place Eatontown NJ 07724 6.910 7,200,000.00 7,184,642.63
N030 50122 4653 Refugee Road Columbus OH 43232 7.495 7,000,000.00 6,942,865.09
B031 3054673 1321 Queen Anne Avenue North Seattle WA 98119 7.103 6,400,000.00 6,387,017.74
N032 50784 7651-7677 Stage Road Buena Park CA 90621 6.795 6,000,000.00 5,982,762.29
N033 50492 7200 Franklin Avenue Hollywood Hills CA 90046 7.000 5,800,000.00 5,775,617.36
N034 50997 508 Douglas Avenue Bakersfield CA 93308 6.860 5,475,000.00 5,471,430.05
B035 3051950 820 Casanova Avenue Monterey CA 93940 7.146 5,500,000.00 5,449,267.31
B036 3057007 5150 North Valentine Avene Fresno CA 93711 6.802 5,175,000.00 5,168,114.67
B037 3051125 3342 M Street Merced CA 95348 6.916 5,100,000.00 5,081,458.56
B038 3055316 6301 Ranchester Drive Houston TX 77036 7.027 5,050,000.00 5,044,778.31
B039 3048246 4247 Hickory Hills Drive Waukegan IL 60087 7.266 4,824,000.00 4,807,954.41
B040 3052248 115 South High School Road Indianapolis IN 46241 7.088 4,800,000.00 4,790,224.84
N041 50865 1300 Highland Avenue Knoxville TN 37916 7.030 4,499,000.00 4,486,859.82
B042 3056934 3600 Fillmore Street San Francisco CA 94123 6.769 4,500,000.00 4,470,949.11
N043 50815 8079 Sunrise East Way Citrus Heights CA 95610 6.970 4,396,400.00 4,380,631.11
N044 50806 1257 Crom Street Manteca CA 95336 7.010 4,349,800.00 4,334,354.34
B045 3049152 7233, 7242, and 7259 Kelvin
Avenue Canoga Park CA 91306 6.963 4,125,000.00 4,110,178.54
B046 3047040 950 Meridian Avenue San Jose CA 95125 6.769 4,000,000.00 3,994,626.35
B047 3052396 745 North 100 East Provo UT 84606 7.146 4,000,000.00 3,989,542.18
N048 50279 558-572 Irvington Avenue Maplewood NJ 07040 7.510 4,000,000.00 3,965,281.36
N049 50763 1912 Heathcliff Drive Dalton GA 30720 6.840 3,855,000.00 3,840,717.48
N050 50493 1611 N. Formosa Avenue Los Angeles CA 90046 7.000 3,824,465.00 3,808,387.31
B051 3062247 30 40&50 Escuela Drive Daly City CA 94015 6.768 3,800,000.00 3,794,893.54
B052 3051695 4532 Murietta Avenue Sherman Oaks CA 91423 7.285 3,800,000.00 3,792,655.84
B053 3052370 57 Soledad Monterey CA 93940 7.559 3,760,000.00 3,751,250.71
N054 50840 22811-22815 Vermont Street Hayward CA 94541 6.910 3,600,000.00 3,589,967.55
N055 50689 2148 Geary Street, SE Albany OR 97321 7.285 3,535,996.00 3,522,205.12
N056 50710 1405 SW 10th Terrace Gainesville FL 32601 7.044 3,440,000.00 3,425,702.77
N057 50895 404 Edgebrook Drive Champaign IL 61820 7.200 3,400,000.00 3,395,990.01
N058 50744 671-691 Gardenia Court,
701-735 Gardenia Circle Paso Robles CA 93446 7.185 3,391,375.00 3,377,791.63
N059 50866 200 Elmhurst Drive Oak Ridge TN 37830 7.030 3,202,000.00 3,193,359.66
N060 50854 260 South Pantano Road Tucson AZ 87510 7.190 3,120,000.00 3,116,308.71
N061 50959 SE 1615 Bleasner Drive Pullman WA 99163 6.970 3,100,000.00 3,096,076.40
N062 50884 7561 Quail Meadow Lane Charlotte NC 28210 6.780 3,100,000.00 3,095,848.78
N063 50772 1858 Thompson Bridge Road Gainesville GA 30501 6.915 3,008,000.00 2,997,061.47
N064 50824 8800 E. Harry Street Wichita KS 67207 6.980 3,000,000.00 2,991,794.83
N065 50553 1175 West Minnesota Ave. Deland FL 32720 7.030 2,960,000.00 2,947,652.85
B066 3052230 20230 Bothell-Everett
Highway Bothell WA 98010 7.027 2,950,000.00 2,942,033.21
N067 50554 4439 Hector Court Orlando FL 32822 7.030 2,925,000.00 2,912,799
N068 50841 6830 Tacoma Mall Blvd. Tacoma WA 98409 6.980 2,900,000.00 2,892,068.33
N069 50588 807 Walters Street Lake Charles LA 70607 7.270 2,850,000.00 2,833,637.05
B070 3056801 10216 Vultee Avenue Downey CA 90241 7.129 2,750,000.00 2,744,459.77
B071 3062239 1501-1601 Ridgecrest Street Monterey Park CA 91754 7.118 2,720,000.00 2,716,709.23
B072 3057015 4101 Brittany Street Bakersfield CA 93312 6.802 2,600,000.00 2,596,540.71
N073 50427 365 West 20th Street New York NY 10122 6.870 2,600,000.00 2,585,406.35
N074 50290 6011 Gaston Ave. Dallas TX 75214 7.700 2,600,000.00 2,583,177.81
N075 50272 1250-A College Parkway Gulf Breeze FL 32561 7.530 2,600,000.00 2,582,476.45
B076 3051844 1125 Sheridan Ave Chico CA 95926 7.204 2,500,000.00 2,495,062.53
B077 3049590 355 E. Lassen Avenue Chico CA 95973 7.064 2,475,000.00 2,469,927.86
N078 50922 259 - 279 Oakville Ave Waterbury CT 06708 7.000 2,400,000.00 2,398,499.41
B079 3057023 3165 W Shields Avenue Fresno CA 93722 6.870 2,360,000.00 2,356,922.38
N080 50823 815 Pomona Avenue Chico CA 95928 7.170 2,337,000.00 2,332,342.58
N081 50765 1104 Walston Street Dalton GA 30720 6.840 2,215,000.00 2,206,793.58
N082 50830 333 Northeast Drive Fort Wayne IN 46825 7.270 2,190,000.00 2,183,068.69
B083 3049483 132 & 140-182
E. Lewelling Blvd San Lorenzo CA 94580 7.472 2,025,000.00 2,020,168.25
B084 3049712 2050 Delaware Avenue West St Paul MN 55118 7.316 1,950,000.00 1,943,597.53
B085 3049863 11505 Riverside Drive Los Angeles CA 91602 7.353 1,925,000.00 1,920,248.81
B086 3049855 10834 Blix Street Los Angeles CA 91602 7.353 1,925,000.00 1,920,248.81
N087 50155 1621 SW Morrison St. Portland OR 97205 7.910 1,895,000.00 1,871,966.89
N088 50206 2819 Rio Grande Austin TX 78705 8.120 1,838,600.00 1,827,029.10
N089 50901 3913 Pisa Drive Panama City FL 32405 6.820 1,800,000.00 1,797,617.75
B090 3048121 301 Bethany Road Burbank CA 91504 7.166 1,725,000.00 1,719,112.68
B091 3051786 50 Hollowview Lane Watsonville CA 95070 7.057 1,700,000.00 1,695,446.13
B092 3046414 1015 2Nd Avenue Proctor MN 55810 7.016 1,600,000.00 1,590,749.66
B093 3062411 302-310 8Th Ave South &
327 7Th Ave South St. Cloud MN 56301 7.262 1,584,000.00 1,583,086.80
B094 3062098 3166 West Princeton Avenue Fresno CA 93722 6.870 1,560,000.00 1,557,965.64
N095 50795 6600 Lancaster Road Little Rock AR 72209 7.110 1,520,000.00 1,514,737.62
N096 50019 7722 Oak Street New Orleans LA 70118 9.080 1,512,000.00 1,501,467.12
B097 3050929 21901 58Th Avenue West Mountlake Terrace WA 98043 7.060 1,475,000.00 1,471,974.04
B098 3062957 4928 Durfee Avenue Pico Rivera CA 90660 6.977 1,450,000.00 1,449,087.06
N099 50743 1000 University Drive East College Station TX 77840 6.850 1,455,000.00 1,448,643.11
B100 3046406 820 Civic Heights Drive Circle Pines MN 55014 6.960 1,450,000.00 1,446,946.87
B101 3051687 6640 West Broadway Avenue Brooklyn Park MN 55428 7.180 1,440,000.00 1,436,270.23
B102 3062106 511 South Graham Street Carbondale IL 62901 7.170 1,425,000.00 1,423,303.54
N103 50415 2030 Belle Vue Way Tallahassee FL 32304 7.860 1,430,000.00 1,422,149.30
N104 50988 112 1st Avenue New York NY 10005 6.900 1,400,000.00 1,399,097.93
N105 50845 507 Sandpiper Lane Arlington TX 76013 7.130 1,400,000.00 1,397,180.27
B106 3049038 900-914 West Belmont Avenue Chicago IL 60657 6.953 1,400,000.00 1,396,143.08
B107 3062114 3537 Bingham Ave. St Louis MO 63111 7.120 1,345,000.00 1,343,373.77
B108 3054780 111 and 115 15Th Street Court Sauk Rapids MN 56379 7.519 1,280,000.00 1,277,678.98
B109 3049020 3115-21 N. Sheffield Avenue Chicago IL 60657 6.953 1,275,000.00 1,271,487.44
B110 3054830 1817 Patricia Avenue Simi Valley CA 91302 7.181 1,235,000.00 1,232,545.93
B111 3056850 110 and 120 18th St.
Northwest Sauk Rapids MN 56379 7.164 1,225,000.00 1,223,538.91
B112 3051091 1970 7TH Street Riverside CA 92507 7.257 1,200,000.00 1,195,999.26
N113 50085 2819 Walton Ave. Ft. Worth TX 76133 8.190 1,200,000.00 1,190,655.19
N114 50411 415 N. Gadsden Tallahassee FL 32303 7.610 1,165,000.00 1,158,193.01
B115 3055464 14950 Vanowen St. Van Nuys CA 91405 6.860 1,150,000.00 1,149,250.15
B116 3052305 1410 Colorado Ave. South St. Louis Park MN 55416 7.033 1,125,000.00 1,123,603.01
B117 3052313 8340 & 8400 Minnetonka Blvd,
2948 Wyoming Avenue South St. Louis Park MN 55426 7.033 1,120,000.00 1,118,609.22
B118 3049665 14438 59Th Ave South Tukwila WA 98168 7.002 1,120,000.00 1,118,596.08
B119 3056736 800-876 S. E. 187Th Avenue Gresham OR 97233 7.229 1,100,000.00 1,097,841.94
B120 3049319 8550 East Old Spanish Trail Tucson AZ 85710 6.861 1,100,000.00 1,096,894.34
N121 50775 139 O'Neil Court Columbia SC 29223-7623 7.170 1,100,000.00 1,096,449.67
B122 3049004 710-716 West Buckingham Ave Chicago IL 60657 6.953 1,087,000.00 1,084,005.37
B123 3049012 712-720 West Grace Avenue Chicago IL 60613 6.953 1,050,000.00 1,047,107.31
N124 50996 4006-4012 Puente Avenue Baldwin Park CA 91706 7.000 1,025,000.00 1,024,359.12
N125 50413 2210 Jackson Bluff Rd. Tallahassee FL 32304 7.860 1,025,000.00 1,019,372.77
B126 3054590 1523 Woodbridge Street and
208 Hoyt Avenue West St Paul MN 55117 7.306 1,000,000.00 998,859.40
B127 3051133 2904 M Street Merced CA 95348 6.665 1,000,000.00 998,615.49
B128 3046604 100,120 Iowa Ave West St Paul MN 55117 7.296 1,000,000.00 997,492.01
N129 50150 1243 High School Street Gardenerville NV 89410 7.980 1,000,000.00 992,749.90
B130 3050903 75 Nw Dogwood Street Issaquah WA 98027 7.060 945,000.00 943,061.33
N131 50676 2700 N. 5th Street Ponca City OK 74601 7.365 900,000.00 892,189.84
N132 50742 1120 NW 45th Ave. Gainesville FL 32609 7.390 880,000.00 874,509.73
N133 50882 1700 North Mays Street Round Rock TX 78664 7.180 875,000.00 873,961.56
B134 3056751 5860 N. Kenmore Avenue Chicago IL 60660 7.207 860,000.00 851,957.57
B135 3062445 5255 East 29Th Street Tucson AZ 85711 7.446 806,250.00 805,371.00
B136 3052297 723 Water Street Excelsior MN 55331 7.033 755,000.00 754,062.047
B137 3054798 1721 Marion Street Roseville MN 55113 8.043 750,000.00 747,970.60
B138 3049749 217-229 8Th Avenue Se Minneapolis MN 55414 7.316 750,000.00 747,537.51
B139 3046398 2501 Leonard Street Duluth MN 55911 6.906 725,000.00 722,537.60
B140 3046422 9416 Old Highway 61 Proctor MN 55810 6.906 680,000.00 677,690.44
B141 3049756 1908 Hennepin Avenue Minneapolis MN 55403 7.166 650,000.00 647,781.59
N142 50940 4200, 4202, 4204 and
4206 Duval Road Austin TX 78759 7.170 630,000.00 629,249.99
B143 3050945 7041 South 116TH Place Seattle WA 98178 7.060 625,000.00 623,717.81
B144 3050937 2010 South Main Street Seattle WA 98144 7.060 525,000.00 523,922.96
B145 3050911 4717-23 36th Ave. S Seattle WA 98118 7.060 505,000.00 503,963.99
B146 3049251 5536 N. Campbell Avenue Chicago IL 60660 7.207 390,000.00 386,352.85
N147 50886 210 East Commerce Ave. High Point NC 27260 7.060 75,000,000.00 74,317,971.53
N148 50774 3393 Laurel Fort Meade Road Laurel MD 20724 7.160 33,000,000.00 32,887,199.91
N149 50428 17960 Chatsworth Street Granada Hills CA 91344 7.000 27,750,000.00 27,732,649.39
N150 50847 SW Corner of CA Highway 41 and
CA Highway 49 Intersection Oakhurst CA 93644 7.071 19,000,000.00 18,961,133.71
N151 50861 614 Berkley Blvd. Goldsboro NC 27534 6.955 18,500,000.00 18,473,775.74
N152 50978 9760-9990 Military Trail Bonita Beach FL 33426 7.120 15,500,000.00 15,490,658.15
N153 50977 1570 Harrison Street Titusville FL 32780 7.120 2,350,000.00 2,348,583.65
N154 50838 5141,5151 Citrus Boulevard Harahan LA 70123 6.750 17,252,000.00 17,213,667.87
N155 50973 215-223, 309-319 Worth Ave. Palm Beach FL 33480 7.110 12,100,000.00 12,092,684.78
N156 50568 2021 Okeechobee Blvd West Palm Beach FL 33409 7.040 11,500,000.00 11,469,052.09
N157 50514 475 Ben Franklin Road, South Indiana PA 15701 6.960 10,700,000.00 10,654,551.91
N158 50900 7135, 7161, 7205, 7211, &
7291 So. Eastern Ave. Las Vegas NV 89119 7.200 8,906,000.00 8,895,496.18
N159 50078 9655 Webb Chapel Rd. Dallas TX 75220 8.850 8,850,000.00 8,839,291.71
N160 50651 160 Coffee Pot Drive Sedona AZ 86336 7.050 8,500,000.00 8,443,340.99
B161 3051117 9925 State Avenue Marysville WA 98270 6.869 7,800,000.00 7,754,768.03
N162 50839 1312 Clarkson Road Ellisville MO 63011 7.020 7,300,000.00 7,270,651.29
B163 3062320 5100 East Arapahoe Road Littleton CO 80122 7.071 7,000,000.00 6,995,716.98
B164 3043320 17100 Bear Valley Road Victor Valley CA 92392 6.832 6,697,500.00 6,672,637.06
B165 3062379 4216 - 4338 Pacific Coast Hwy.Torrance CA 90505 7.202 6,000,000.00 5,996,474.92
N166 50897 10970 - 11000 S. Parker Rd. Parker CO 80134 7.060 6,000,000.00 5,992,610.50
N167 50896 1800 Folsom St. San Francisco CA 94103 7.285 5,800,000.00 5,800,000.00
N168 50126 2500 Clarendon Blvd. New Bern NC 28560 7.770 5,475,000.00 5,406,722.13
N169 50104 4105 Denton Highway Haltom City TX 76117 9.110 804,000.00 789,108.85
N170 50109 1809 West 7th Avenue Corsicana TX 75110 9.110 664,000.00 657,133.99
N171 50111 1310-1318 Cherry Street Graham TX 76450 9.110 661,000.00 654,165.09
N172 50108 106 Mansfield Hwy Kennendale TX 76060 9.110 657,500.00 650,701.21
N173 50107 5500-5520 River Oaks Blvd. River Oaks TX 76114 9.110 642,000.00 635,361.54
N174 50105 1309 Brown Trail Bedford TX 76022 9.110 616,000.00 609,630.35
N175 50110 611-625 West Panola St. Carthage TX 75663 9.110 529,500.00 524,024.78
N176 50106 5203 McCart Ave Ft Worth TX 76115 9.110 521,000.00 515,612.76
N177 50857 421 The Parkway Greer SC 29650 7.020 5,008,000.00 5,001,756.63
B178 3049814 3003-3059 Hopyard Road and
5525-5737 Valley Ave. Pleasanton CA 94588 7.284 5,000,000.00 4,987,417.89
N179 50418 4615 Lake Worth Road Greenacres FL 33463 7.540 5,000,000.00 4,980,296.07
B180 3054954 11450 Market St. Jacinto City TX 77029 7.763 4,900,000.00 4,882,810.84
N181 50559 2906-2934 Randleman Rd. Greensboro NC 27406 7.130 4,600,000.00 4,594,455.33
N182 50851 4058 13th Street St. Cloud FL 34769 7.410 4,240,000.00 4,235,322.93
N183 50073 14703 Baltimore Ave. Laurel MD 20707 9.100 4,048,631.81 4,030,358.50
B184 3052339 108 W. Germania Place Chicago IL 60610 7.724 3,850,000.00 3,843,408.25
N185 50850 7200 Normandy Blvd Jacksonville FL 32205 7.410 3,840,000.00 3,835,764.15
B186 3052271 1101-1275 Butterfield Rd. Wheaton IL 60187 7.825 3,803,000.00 3,796,673.88
N187 50064 305 East Spur 303
(SEC Highway 303) Grand Prairie TX 75050 8.880 3,694,000.00 3,651,281.77
B188 3062395 955 West Sepulveda Blvd Torrance CA 90502 7.115 3,600,000.00 3,595,640.54
N189 50065 2500 West Pioneer Parkway Pantego TX 76013 8.880 3,525,000.00 3,484,236.11
N190 50738 1834 State Route 17 Tappahannock VA 22560 7.170 3,480,000.00 3,470,961.51
N191 50867 349-351 Newbury St. Boston MA 02115 7.110 3,400,000.00 3,395,876.38
N192 50870 4400 Potter Rd. Stallings NC 28106 6.930 3,300,000.00 3,295,772.80
N193 50667 71 Lighthouse Rd. Hilton Head Island SC 29928-7216 7.610 3,300,000.00 3,290,239.49
N194 50627 203-281 Crockett Boulevard Merritt Island FL 32953 6.950 3,200,000.00 3,172,852.04
B195 3049186 24130-24180 Lyons Avenue Santa Clarita CA 92705 6.709 3,050,000.00 3,038,329.73
N196 50813 349 Nanticoke Rd. (aka
Maryland Route North 349) Salisbury MD 21801 7.280 3,000,000.00 2,987,533.22
N197 50124 1448 East Main St. Rock Hill SC 29730 7.940 2,975,000.00 2,953,214.83
N198 50801 601, 609, 617, 641-645,
651-665 & 675 No. Broadway Escondio CA 92025 7.190 2,900,000.00 2,888,400.09
B199 3049129 4149 Tweedy Boulevard South Gate CA 90280 7.772 2,800,000.00 2,793,880.83
N200 50891 4947, 4949 and 4951
Tamiami Trail Naples FL 34103 7.050 2,800,000.00 2,790,382.58
B201 3062338 16361- Bolsa Chica Street Huntington Beach CA 92649 7.368 2,437,500.00 2,434,774.47
N202 50707 2245 Charleston Highway/
NE Corner North Eden Drive Cayce SC 29033 7.330 2,339,500.00 2,327,431.95
N203 50736 295 Highway 90(at Dunbar Ave) Bay St. Louis MS 39520-3600 7.280 2,330,100.00 2,317,596.74
N204 50918 4551 New Falls Rd. Levittown PA 19056 6.980 2,200,000.00 2,197,702.14
N205 50136 9650 Strickland Rd. Raleigh NC 27615 8.680 2,100,000.00 2,087,295.51
N206 50137 8800 Harvest Oaks Drive Raleigh NC 27615 8.680 2,075,000.00 2,062,446.80
N207 50800 8200 Montgomery Blvd., NE Albuquerque NM 87109 6.940 2,100,000.00 2,052,096.69
N208 50149 1803 Knight Ave/504 City Blvd Waycross GA 31501 7.920 2,025,000.00 2,000,432.19
N209 50926 5 Greenwood Dr Hilton Head Island SC 29928 7.450 2,000,000.00 1,996,219.35
N210 50525 SE Corner of W. Kenosha St
(71st) & N. Aspen Ave
(145th Ave) Broken Arrow OK 74012 7.250 2,000,000.00 1,983,876.79
N211 50151 1902-60 Stickney Point Road Sarasota FL 34231 8.780 2,000,000.00 1,977,896.23
B212 3043874 State Highway 299 Weavervill CA 96093 7.259 1,950,000.00 1,940,675.14
B213 3054822 6151 Ball Road Cypress CA 90630 7.675 1,850,000.00 1,846,788.34
N214 50819 4200 Wyoming Blvd., NE Albuquerque NM 87111 7.830 1,800,000.00 1,791,325.86
N215 50807 400,405,410 Home Drive Pittsburgh PA 15275 7.440 1,700,000.00 1,694,797.49
N216 50225 3131 4th Street North St. Petersburg FL 33704 8.000 1,700,000.00 1,681,602.96
N217 50808 271-279 East Paces Ferry
Road, NE Atlanta GA 30305 7.660 1,650,000.00 1,645,168.86
B218 3056728 11800-11830 Hawthorne Blvd Hawthorne CA 90250 7.687 1,624,000.00 1,622,366.47
N219 50459 3918 South Highland Drive Salt Lake City UT 84117 7.640 1,550,000.00 1,531,010.79
N220 50747 2801-2811 East Oakland
Park Blvd. Ft. Lauderdale FL 33306 7.030 1,450,000.00 1,441,841.12
N221 50024 3004 Emmorton Rd. Abingdon MD 21009 9.830 1,402,300.00 1,387,033.29
B222 3051836 12772 Saratoga Sunnyvale Rd Saratoga CA 95070 7.296 1,400,000.00 1,367,878.26
N223 50718 1100-1150 West 8th Street Yuma AZ 85364 6.800 1,350,000.00 1,346,126.61
N224 50593 2740 Wyoming Boulevard, NE Albuquerque NM 87111 7.470 1,320,000.00 1,309,754.29
B225 3056876 8301 Reseda Boulevard Northridge CA 91324 7.870 1,300,000.00 1,292,374.52
N226 50799 4 South McCain Drive Frederick MD 21703 7.770 1,280,000.00 1,273,757.59
N227 50859 301 Haywood Road Greenville SC 29607 7.580 1,200,000.00 1,185,467.91
B228 3062213 550 Waverly Street Palo Alto CA 94301 7.752 1,125,000.00 1,123,893.43
B229 3054749 6250- East Pine Lane Parker CO 80202 7.725 1,100,000.00 1,098,117.18
B230 3062197 1220 South Central Avenue Glendale CA 91204 7.552 1,025,000.00 1,023,106.51
B231 3054913 497 North Clovis Avenue Clovis CA 93611 7.710 1,000,000.00 998,281.05
B232 3062205 1355 and 1385 Santa Fe Drive Denver CO 80204 7.575 937,500.00 935,777.18
B233 3062718 1433 Carson Street Torrance CA 90501 7.686 830,000.00 829,583.80
B234 3051000 1544-1562 N Cahuenga Blvd. Hollywood CA 90028 7.824 750,000.00 748,386.34
B235 3051018 900 West Main Street Carbondale IL 62901 7.950 730,000.00 721,439.58
B236 3052420 7337 East Pav Way Prescott Valley AZ 86315 7.992 717,500.00 712,573.72
B237 3047198 328-332 Manhattan Beach Blvd Manhattan Beach CA 90266 7.542 715,000.00 704,106.73
N238 50892 2 Journal Square Jersey City NJ 07036 6.915 41,000,000.00 40,973,700.38
N239 50445 3101 Park Center Drive Alexandria VA 22302 7.610 28,650,000.00 28,460,566.15
N240 50934 One Massachusetts Ave., NW Washington DC 20001 6.860 23,700,000.00 23,684,546.51
B241 3055241 2260-2280 Agnew Road Santa Clara CA 95054 7.218 16,255,000.00 16,235,936.52
N242 50833 500 East Main St. Norfolk VA 23510 7.150 12,580,000.00 12,540,219.11
B243 3055050 901 Battery Street &
998 Sansome Street San Francisco CA 94111 7.436 8,500,000.00 8,484,231.16
B244 3056884 1828 El Camino Real Burlingame CA 94010 7.112 6,075,000.00 6,067,636.60
B245 3056967 3123 Professional Drive Auburn CA 95603 7.318 5,415,000.00 5,408,847.27
B246 3048287 1505 - 1575 W. University Dr. Tempe AZ 85281 7.221 5,350,000.00 5,339,481.56
N247 50626 3000 Coliseum Blvd. Fort Wayne IN 46805 7.130 5,100,000.00 5,066,524.62
B248 3056785 539 Bryant Street San Francisco CA 94107 7.211 5,000,000.00 4,983,990.93
B249 3062494 10801 National Blvd Los Angeles CA 90064 7.196 4,200,000.00 4,195,040.28
B250 3049764 5266 & 5276 Hollister Avenue Santa Barbara CA 93111 7.361 4,000,000.00 3,990,149.66
N251 50980 2110 Forest Ave. San Jose CA 95128 6.980 3,712,500.00 3,710,164.68
N252 50641 2201 and 2237 Trinity Drive Los Alamos NM 87544 7.320 3,700,000.00 3,681,187.87
N253 50042 11500 Northwest Freeway Houston TX 77009 9.050 3,200,000.00 3,178,544.38
B254 3051976 1475 North Broadway Walnut Creek CA 94596 7.803 2,850,000.00 2,843,829.19
N255 50863 1916 Patterson St. Nashville TN 37203 7.040 2,700,000.00 2,698,332.24
B256 3062262 3780 Rosin Court Sacramento CA 95834 7.179 2,700,000.00 2,696,794.64
N257 50449 1211-1217 East Cary Street Richmond VA 23219 7.470 2,600,000.00 2,579,819.07
N258 50685 5589 Greenwich Road Virginia Beach VA 23462 6.930 2,370,000.00 2,353,835.38
N259 50198 1700 Commerce Street Dallas TX 75247 8.420 2,101,000.00 2,087,385.14
N260 50517 4995 Lacross Rd. Charleston SC 29406 7.290 1,980,000.00 1,964,147.14
N261 50910 2401 - 2435 E. Atlantic Blvd.
& 12 NE 24th Avenue Pompano Beach FL 33062 7.260 1,900,000.00 1,896,253.52
B262 3054525 415 South Medical Drive Bountiful UT 84010 7.591 1,875,000.00 1,873,051.65
B263 3052263 992 S. De Anza Blvd. San Jose CA 95129 7.425 1,725,000.00 1,719,705.20
B264 3051893 29 West Anapamu Street Santa Barbara CA 93101 7.404 1,700,000.00 1,695,864.26
B265 3052123 550 North Canyons Parkway Livermore CA 94550 7.302 1,665,000.00 1,663,098.49
B266 3047693 1150 North First Street San Jose CA 95112 7.000 1,600,000.00 1,590,946.14
N267 50792 8910 Miramar Parkway Miramar FL 33025 7.340 1,513,000.00 1,507,185.56
N268 50820 9101 Montgomery NE Albuquerque NM 87111 7.330 1,500,000.00 1,497,087.61
B269 3056983 3612 Dale Road Modesto CA 95356 6.852 1,460,000.00 1,450,641.79
B270 3056793 1410 - 1418 N. 3rd St. Phoenix AZ 85004 7.262 1,400,000.00 1,398,380.71
B271 3062403 707-709 East Colorado Blvd Pasadena CA 91101 6.965 1,400,000.00 1,398,225.38
B272 3051877 24681 La Plaza Drive Dana Point CA 92629 7.628 1,400,000.00 1,397,537.23
N273 50873 8205 Spain Rd. NE Albuquerque NM 87109 7.980 1,400,000.00 1,395,840.94
B274 3056975 7430 East Butherus Drive Scottsdale AZ 85260 7.415 1,375,000.00 1,373,485.72
B275 3052156 600 Allerton Street Redwood City CA 94063 7.396 1,340,000.00 1,336,732.66
B276 3045333 15535 San Fernando
Mission Blvd Mission Hills CA 91345 7.691 1,300,000.00 1,268,412.00
B277 3062346 200 California Avenue Palo Alto CA 94301 7.468 1,125,000.00 1,123,782.29
B278 3052404 10 Jackson Street Los Gatos CA 95032 7.714 1,115,000.00 1,113,085.54
B279 3062312 634-640 Ramona Street Palo Alto CA 94301 7.468 1,100,000.00 1,098,809.35
B280 3051174 4301 & 4321 Birch Street Newport Beach CA 92660 7.664 1,056,000.00 1,051,944.28
B281 3062361 853 Middlefield Road Palo Alto CA 94301 7.452 1,050,000.00 1,048,857.50
N282 50810 Highway 173 Unicoi TN 37650 7.200 1,050,000.00 1,047,295.34
B283 3049509 4370 Alpine Road Portola Valley CA 94028 7.541 1,000,000.00 998,148.08
B284 3056892 809 Sacramento Street San Francisco CA 94108 7.190 770,000.00 769,089.01
N285 50696 Cornwallis Rd. and South
Alston Rd. Durham NC 27713 7.100 26,760,000.00 26,617,152.58
N286 50728 2530 South Tricenter Blvd &
3791, 3831 Alston Avenue Durham NC 27713 7.100 13,360,000.00 13,288,683.04
N287 50880 8700 Robert Fulton Dr &
6751 Alexander Bell Dr. Columbia MD 21046 7.100 39,800,000.00 39,751,580.55
N288 50879 8700 Robert Fulton Dr Columbia MD 21046 7.100 27,200,000.00 27,166,909.33
B289 3051067 2701-West El Segundo Blvd Hawthorne CA 90250 7.100 9,400,000.00 9,380,917.26
B290 3056710 1565 Reliance Way Fremont CA 94539 7.262 8,450,000.00 8,371,353.47
N291 50560 21 & 43 Third Avenue,
59 & 61 Inner Belt Road Somerville MA 02143 7.020 7,700,000.00 7,667,797.29
B292 3049608 1901 Bendix Drive South Bend IN 46628 7.478 3,750,000.00 3,738,200.26
N293 50480 1170 Mark Avenue Carpinteria CA 93013 7.910 3,790,000.00 3,700,033.32
B294 3054814 2355 Old Oakland Road San Jose CA 95131 7.118 3,500,000.00 3,495,765.56
B295 3062429 4110 East Wood Street Phoenix AZ 85040 7.138 3,075,000.00 3,073,157.00
N296 50719 410-444 South Cedros Ave. Solana Beach CA 92075 7.980 2,600,000.00 2,587,842.34
B297 3054889 3612-96 Edison Way & 44250
Old Warm Springs Blvd Fremont CA 94538 7.279 2,570,000.00 2,565,025.02
B298 3044591 48301 Lakeview Blvd Fremont CA 94538 7.194 2,450,000.00 2,435,684.66
B299 3051992 4487 Technology Drive Fremont CA 94538 7.199 2,100,000.00 2,094,589.21
N300 50890 8635-8651 Aviation Blvd. Inglewood CA 90301 7.250 2,000,000.00 1,998,842.58
N301 50887 5050 Steptoe Dr. Las Vegas NV 89122 7.200 2,000,000.00 1,998,008.23
N302 50700 1915-1921 Annapolis Road Baltimore City MD 21230 7.140 1,925,000.00 1,909,186.98
B303 3052446 135 East St. Charles Road Carol Stream IL 60188 7.609 1,820,000.00 1,815,826.17
B304 3054707 5720 East Second Street Vernon CA 90058 7.100 1,700,000.00 1,697,931.83
B305 3049624 8311 East Boon Road Cadillac MI 49601 7.616 1,650,000.00 1,641,704.63
B306 3051711 2930-2964 Corvin Drive Santa Clara CA 95051 7.457 1,600,000.00 1,593,586.17
B307 3049491 3575 Haven Avenue Menlo Park CA 94025 7.656 1,593,750.00 1,574,576.39
B308 3047727 5648 Copley Drive San Diego CA 92111 7.516 1,537,500.00 1,532,710.67
B309 3049475 12152-62 Woodruff Avenue Downey CA 90241 7.534 1,500,000.00 1,496,484.23
B310 3062478 2518 2nd Street North Bldg Minneapolis MN 55411 7.168 1,460,000.00 1,458,260.79
B311 3062437 1033-1035 E.Jefferson Street Phoenix AZ 85034 7.188 1,312,500.00 1,311,725.50
B312 3051760 8225 Mercury Court San Diego CA 92111 7.759 1,250,000.00 1,245,293.85
B313 3049533 5601 Eastgate Drive San Diego CA 92121 7.054 1,200,000.00 1,197,534.33
B314 3056769 1030 - 1040 N. Grove St. Anaheim CA 92806 7.404 1,160,000.00 1,157,829.13
B315 3062460 27742 Forbes Road Laguna Niguel CA 92677 7.318 1,100,000.00 1,098,750.14
B316 3049467 13113 South Figueroa Street Los Angeles CA 90061 7.647 1,100,000.00 1,090,098.70
B317 3062189 1413 Sherman Road Romeoville IL 60446 7.179 1,035,000.00 1,033,771.28
B318 3049616 432 Front Avenue St Paul MN 55117 7.580 975,000.00 970,063.47
N319 50512 740 Century Circle Conway SC 29526 7.660 900,000.00 895,505.27
B320 3051703 17671 Metzler Lane Huntington Beach CA 92647 7.533 890,000.00 887,913.37
N321 50511 95 Research Parkway Meriden CT 06450 7.660 855,000.00 850,730.02
B322 3056777 11711 Coley River Circle Fountain Valley CA 92708 7.425 850,000.00 848,418.37
B323 3050952 210 Boeing Court Livermore CA 94550 7.920 800,000.00 797,767.76
N324 50834 3800 Midway Place, NE/5940
Midway Park Blvd
(same structure) Albuquerque NM 87109 7.850 800,000.00 797,045.45
B325 3051026 1433 & 1473 West Linden St Riverside CA 92507 8.170 745,000.00 743,063.56
B326 3056942 8601- 8609 Production Ave. San Diego CA 92121 7.914 525,000.00 521,932.38
N327 50868 2411 Alaskan Way Seattle WA 98121 7.430 26,100,000.00 26,009,897.96
N328 50856 Zero Duval Street Key West FL 33040 7.190 11,500,000.00 11,476,973.34
N329 50701 One Residence Inn Drive Latham NY 12110 7.380 7,245,000.00 7,182,259.49
N330 50846 13801 US Highway 1 Juno Beach FL 33408 7.810 4,576,000.00 4,568,034.45
N331 50869 2121 Park Avenue Park City UT 84060 7.140 4,550,000.00 4,540,789.71
N332 50928 555 East Canal St. Richmond VA 23219 6.990 3,500,000.00 3,492,682.31
N333 50875 3301 S. Atlantic Ave. Daytona Beach FL 32118 7.100 3,400,000.00 3,390,036.66
N334 50872 6700 Transit Rd. Williamsville NY 14221 7.880 2,961,000.00 2,952,061.22
N335 50505 180 South Beltline Highway Mobile AL 36608 8.150 2,571,300.00 2,562,397.72
N336 50693 2625 North Salisbury Blvd Salisbury MD 21801 8.180 2,400,000.00 2,391,745.14
N337 50783 1780 East County Road D Maplewood MN 55109 7.480 2,400,000.00 2,379,504.47
N338 50816 1441 West Central Carthage MO 64836 7.670 2,100,000.00 2,089,682.28
B339 3052412 3131 Valley Road National City CA 92050 7.064 4,300,000.00 4,291,187.80
B340 3062940 4240 A Street SE Auburn WA 98002 6.902 4,000,000.00 3,997,424.20
N341 50939 1218 East Cleveland Ave Madera CA 93638 6.640 3,540,000.00 3,535,063.53
B342 3051778 4605 South Priest Drive Tempe AZ 85282 7.253 3,500,000.00 3,491,116.05
N343 50938 10300 Kings River Road Reedley CA 93654 6.640 3,400,000.00 3,395,258.75
B344 3049350 100 North Rodeo Gulch Road Soquel CA 95073 6.926 3,288,000.00 3,278,876.07
B345 3051869 3301 Buchanan Road Antioch CA 94509 7.175 3,150,000.00 3,143,730.67
B346 3049301 1350 Pueblo Avenue Napa CA 94559 6.911 2,640,000.00 2,632,644.83
B347 3056918 101 River Drive King City CA 93930 6.902 1,925,000.00 1,923,760.40
B348 3052180 Highway 304 Belen NM 87002 7.222 1,612,500.00 1,608,371.65
B349 3056926 840 Airport Boulevard Santa Rosa CA 95403 6.902 1,537,000.00 1,536,010.25
B350 3062148 6300 Roseville Road Sacramento CA 95842 6.861 1,350,000.00 1,348,234.80
B351 3062916 6850 Downing Road Central Point OR 97502 7.113 1,250,000.00 1,249,244.99
B352 3051828 2920 Clark Road Oroville CA 95965 7.219 1,225,000.00 1,222,590.29
B353 3047990 1565 West Arrow Highway Upland CA 91786 6.897 1,000,000.00 996,816.70
N354 50164 Various Atlanta TX 75551 9.210 6,258,000.00 6,198,761.73
N355 50192 Various Quitman TX 75783 9.210 3,742,000.00 3,706,578.16
N356 50278 907 Ida Belle Street Sunnyside WA 98944 8.340 4,800,000.00 4,755,247.24
N357 50802 104 Pension Road Englishtown NJ 07726 8.460 4,000,000.00 3,990,097.39
N358 50690 2425 East Hanna Avenue Tampa FL 33610 7.690 3,550,000.00 3,529,139.07
N359 50000 840, 848, 850 Reidville Rd Spartanburg SC 29306 9.280 3,275,121.00 3,222,183.21
N360 50561 Various Fishersville and
Staunton VA Various 7.675 2,360,000.00 2,342,323.64
N361 50670 888 South Hillhurst Rd. Ridgefield WA 98642 7.650 2,290,000.00 2,276,434.25
N362 50531 750 Keyser Avenue Natchitoches LA 71457 8.215 2,200,000.00 2,183,207.79
N363 50821 590 Flank Road Petersburg VA 23805 7.680 2,000,000.00 1,992,344.35
N364 50528 1720 Burton Drive Falls City NE 68355 8.100 1,100,000.00 1,092,356.76
N365 50908 12225 56th St. North Tampa FL 33617 7.100 2,450,000.00 2,444,997.41
N366 50907 5907 West Linebaugh Ave. Tampa FL 33624 7.100 1,900,000.00 1,896,120.46
B367 3049525 25142 Front Street Lake Forest CA 92630 7.622 3,700,000.00 3,685,664.73
B368 3043155 6318 West Sahara Avenue Las Vegas NV 89102 7.797 2,500,000.00 2,479,394.16
B369 3062130 601 Martin Avenue Rohnert Park CA 94928 7.520 1,858,600.00 1,855,141.62
B370 3056959 13633 Rosecrans Avenue Santa Fe Springs CA 90670 7.370 1,057,000.00 1,055,818.86
B371 3049178 1155 East Irvington Road Tucson AZ 85714 7.470 1,050,000.00 1,046,689.07
N372 50324 Various Various TX Various 8.600 5,910,000.00 5,829,512.11
N373 50323 3050 Ross Clark Circle, SW Dothan AL 36301 8.600 3,740,000.00 3,689,065.18
N374 50320 7880 IH 35 North San Antonio TX 78218 8.600 1,820,000.00 1,791,184.44
N375 50321 97 Loop 410 NE San Antonio TX 78216 8.600 1,100,000.00 1,047,194.42
N376 50829 210-218 West Baltimore Street Baltimore MD 21202 7.490 5,400,000.00 5,383,638.46
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Remaining
Term To Stated Stated Primary
Loan Maturity Maturity Due Monthly Admin. Servicing Estate. Loan
Sequence Number (Months) Date Date Payment Fee Rate Fee Rate Interest Seller
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
N001 50752 176 5/1/13 1st $187,282.41 0.11325% 0.0700% Fee Simple NationsBank
N002 50659 114 3/1/08 1st 133,860.82 0.11325% 0.0700% Fee Simple NationsBank
N003 50958 82 7/1/05 1st 106,803.76 0.14325% 0.1000% Fee Simple NationsBank
N004 50750 114 3/1/08 1st 107,681.54 0.10325% 0.0600% Fee Simple NationsBank
N005 50925 118 7/1/08 1st 47,798.89 0.14325% 0.1000% Fee Simple NationsBank
N006 50924 118 7/1/08 1st 21,497.19 0.14325% 0.1000% Fee Simple NationsBank
N007 50923 118 7/1/08 1st 21,366.28 0.14325% 0.1000% Fee Simple NationsBank
N008 50921 118 7/1/08 1st 17,245.51 0.14325% 0.1000% Fee Simple NationsBank
N009 50646 112 1/1/08 1st 24,645.53 0.14325% 0.1000% Fee Simple NationsBank
N010 50645 112 1/1/08 1st 22,281.33 0.14325% 0.1000% Fee Simple NationsBank
N011 50654 112 1/1/08 1st 17,961.13 0.14325% 0.1000% Fee Simple NationsBank
N012 50644 112 1/1/08 1st 16,481.38 0.14325% 0.1000% Fee Simple NationsBank
N013 50655 112 1/1/08 1st 5,768.55 0.14325% 0.1000% Fee Simple NationsBank
N014 50656 112 1/1/08 1st 4,614.84 0.14325% 0.1000% Fee Simple NationsBank
B015 3054921 117 6/1/08 1st 84,623.50 0.14325% 0.1000% Fee Simple BankAmerica
N016 50691 115 4/1/08 1st 80,360.99 0.14325% 0.1000% Fee Simple NationsBank
N017 50094 106 7/1/07 1st 90,194.18 0.11325% 0.0700% Fee Simple NationsBank
N018 50790 114 3/1/08 1st 76,927.17 0.14325% 0.1000% Fee Simple NationsBank
B019 3047180 116 5/1/08 1st 65,271.37 0.14325% 0.1000% Fee Simple BankAmerica
N020 50971 82 7/1/05 1st 55,122.28 0.14325% 0.1000% Fee Simple NationsBank
B021 3052107 116 5/1/08 1st 57,223.06 0.14325% 0.1000% Fee Simple BankAmerica
N022 50842 118 7/1/08 1st 56,509.34 0.14325% 0.1000% Fee Simple NationsBank
N023 50013 101 2/1/07 1st 65,900.06 0.19325% 0.1500% Fee Simple NationsBank
N024 50920 119 8/1/08 1st 53,405.56 0.13325% 0.0900% Fee Simple NationsBank
N025 50936 118 7/1/08 1st 52,752.00 0.14325% 0.1000% Fee Simple NationsBank
N026 50844 117 6/1/08 1st 53,365.77 0.14325% 0.1000% Fee Simple NationsBank
N027 50831 116 5/1/08 1st 53,231.37 0.14325% 0.1000% Fee Simple NationsBank
B028 3052032 116 5/1/08 1st 49,214.55 0.14325% 0.1000% Fee Simple BankAmerica
N029 50836 117 6/1/08 1st 47,467.38 0.14325% 0.1000% Fee Simple NationsBank
N030 50122 108 9/1/07 1st 48,921.05 0.14325% 0.1000% Fee Simple NationsBank
B031 3054673 117 6/1/08 1st 43,022.99 0.14325% 0.1000% Fee Simple BankAmerica
N032 50784 116 5/1/08 1st 39,095.53 0.14325% 0.1000% Fee Simple NationsBank
N033 50492 114 3/1/08 1st 38,587.54 0.14325% 0.1000% Fee Simple NationsBank
N034 50997 119 8/1/08 1st 35,911.99 0.14325% 0.1000% Fee Simple NationsBank
B035 3051950 212 5/1/16 1st 45,322.94 0.14325% 0.1000% Fee Simple BankAmerica
B036 3057007 118 7/1/08 1st 33,744.02 0.14325% 0.1000% Fee Simple BankAmerica
B037 3051125 115 4/1/08 1st 33,643.20 0.14325% 0.1000% Fee Simple BankAmerica
B038 3055316 119 8/1/08 1st 35,779.38 0.14325% 0.1000% Fee Simple BankAmerica
B039 3048246 115 4/1/08 1st 32,960.55 0.14325% 0.1000% Fee Simple BankAmerica
B040 3052248 117 6/1/08 1st 32,218.70 0.14325% 0.1000% Fee Simple BankAmerica
N041 50865 116 5/1/08 1st 30,022.66 0.14325% 0.1000% Fee Simple NationsBank
B042 3056934 178 7/1/13 1st 39,868.34 0.14325% 0.1000% Fee Simple BankAmerica
N043 50815 115 4/1/08 1st 29,160.83 0.14325% 0.1000% Fee Simple NationsBank
N044 50806 115 4/1/08 1st 28,968.55 0.12325% 0.0800% Fee Simple NationsBank
B045 3049152 115 4/1/08 1st 27,341.30 0.14325% 0.1000% Fee Simple BankAmerica
B046 3047040 94 7/1/06 1st 25,994.46 0.14325% 0.1000% Fee Simple BankAmerica
B047 3052396 116 5/1/08 1st 27,005.46 0.14325% 0.1000% Fee Simple BankAmerica
N048 50279 172 1/1/13 1st 29,585.67 0.19325% 0.1500% Fee Simple NationsBank
N049 50763 115 4/1/08 1st 25,234.52 0.14325% 0.1000% Fee Simple NationsBank
N050 50493 114 3/1/08 1st 25,444.26 0.14325% 0.1000% Fee Simple NationsBank
B051 3062247 118 7/1/08 1st 24,692.21 0.14325% 0.1000% Fee Simple BankAmerica
B052 3051695 117 6/1/08 1st 26,012.97 0.14325% 0.1000% Fee Simple BankAmerica
B053 3052370 116 5/1/08 1st 26,442.54 0.14325% 0.1000% Fee Simple BankAmerica
N054 50840 116 5/1/08 1st 23,733.69 0.14325% 0.1000% Fee Simple NationsBank
N055 50689 174 3/1/13 1st 24,205.73 0.16825% 0.1250% Fee Simple NationsBank
N056 50710 114 3/1/08 1st 22,988.15 0.14325% 0.1000% Fee Simple NationsBank
N057 50895 118 7/1/08 1st 23,078.80 0.14325% 0.1000% Fee Simple NationsBank
N058 50744 174 3/1/13 1st 22,985.83 0.16825% 0.1250% Fee Simple NationsBank
N059 50866 116 5/1/08 1st 21,367.54 0.14325% 0.1000% Fee Simple NationsBank
N060 50854 118 7/1/08 1st 21,157.08 0.14325% 0.1000% Fee Simple NationsBank
N061 50959 118 7/1/08 1st 20,561.96 0.14325% 0.1000% Fee Simple NationsBank
N062 50884 118 7/1/08 1st 20,168.40 0.14325% 0.1000% Fee Simple NationsBank
N063 50772 115 4/1/08 1st 19,840.88 0.14325% 0.1000% Fee Simple NationsBank
N064 50824 116 5/1/08 1st 19,918.80 0.14325% 0.1000% Fee Simple NationsBank
N065 50553 114 3/1/08 1st 19,752.63 0.14325% 0.1000% Fee Simple NationsBank
B066 3052230 116 5/1/08 1st 19,679.95 0.14325% 0.1000% Fee Simple BankAmerica
N067 50554 114 3/1/08 1st 19,519.07 0.14325% 0.1000% Fee Simple NationsBank
N068 50841 116 5/1/08 1st 19,254.84 0.14325% 0.1000% Fee Simple NationsBank
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B070 3056801 117 6/1/08 1st 18,534.68 0.14325% 0.1000% Fee Simple BankAmerica
B071 3062239 118 7/1/08 1st 18,312.29 0.14325% 0.1000% Fee Simple BankAmerica
B072 3057015 118 7/1/08 1st 16,953.52 0.14325% 0.1000% Fee Simple BankAmerica
N073 50427 113 2/1/08 1st 17,071.46 0.14325% 0.1000% Fee Simple NationsBank
N074 50290 110 11/1/07 1st 18,536.96 0.14325% 0.1000% Fee Simple NationsBank
N075 50272 74 11/1/04 1st 18,233.02 0.14325% 0.1000% Fee Simple NationsBank
B076 3051844 117 6/1/08 1st 16,976.48 0.14325% 0.1000% Fee Simple BankAmerica
B077 3049590 117 6/1/08 1st 16,572.75 0.14325% 0.1000% Fee Simple BankAmerica
N078 50922 119 8/1/08 1st 15,967.26 0.14325% 0.1000% Fee Simple NationsBank
B079 3057023 118 7/1/08 1st 15,495.64 0.14325% 0.1000% Fee Simple BankAmerica
N080 50823 117 6/1/08 1st 15,815.85 0.14325% 0.1000% Fee Simple NationsBank
N081 50765 115 4/1/08 1st 14,499.21 0.14325% 0.1000% Fee Simple NationsBank
N082 50830 117 6/1/08 1st 15,857.70 0.24325% 0.2000% Fee Simple NationsBank
B083 3049483 116 5/1/08 1st 14,120.29 0.14325% 0.1000% Fee Simple BankAmerica
B084 3049712 115 4/1/08 1st 13,389.84 0.14325% 0.1000% Fee Simple BankAmerica
B085 3049863 116 5/1/08 1st 13,266.65 0.14325% 0.1000% Fee Simple BankAmerica
B086 3049855 116 5/1/08 1st 13,266.65 0.14325% 0.1000% Fee Simple BankAmerica
N087 50155 108 9/1/07 1st 14,513.12 0.14325% 0.1000% Fee Simple NationsBank
N088 50206 169 10/1/12 1st 13,645.12 0.11825% 0.0750% Fee Simple NationsBank
N089 50901 118 7/1/08 1st 11,758.64 0.14325% 0.1000% Fee Simple NationsBank
B090 3048121 115 4/1/08 1st 11,669.42 0.14325% 0.1000% Fee Simple BankAmerica
B091 3051786 116 5/1/08 1st 11,375.29 0.14325% 0.1000% Fee Simple BankAmerica
B092 3046414 237 6/1/18 1st 12,420.15 0.14325% 0.1000% Fee Simple BankAmerica
B093 3062411 119 8/1/08 1st 10,818.57 0.14325% 0.1000% Fee Simple BankAmerica
B094 3062098 118 7/1/08 1st 10,242.88 0.14325% 0.1000% Fee Simple BankAmerica
N095 50795 115 4/1/08 1st 10,225.14 0.14325% 0.1000% Fee Simple NationsBank
N096 50019 104 5/1/07 1st 12,253.03 0.19325% 0.1500% Fee Simple NationsBank
B097 3050929 117 6/1/08 1st 9,872.72 0.14325% 0.1000% Fee Simple BankAmerica
B098 3062957 119 8/1/08 1st 9,624.50 0.14325% 0.1000% Fee Simple BankAmerica
N099 50743 114 3/1/08 1st 9,534.02 0.14325% 0.1000% Fee Simple NationsBank
B100 3046406 117 6/1/08 1st 9,607.97 0.14325% 0.1000% Fee Simple BankAmerica
B101 3051687 116 5/1/08 1st 9,755.06 0.14325% 0.1000% Fee Simple BankAmerica
B102 3062106 118 7/1/08 1st 9,643.81 0.14325% 0.1000% Fee Simple BankAmerica
N103 50415 111 12/1/07 1st 10,353.61 0.16825% 0.1250% Fee Simple NationsBank
N104 50988 119 8/1/08 1st 9,220.40 0.14325% 0.1000% Fee Simple NationsBank
N105 50845 117 6/1/08 1st 9,436.78 0.14325% 0.1000% Fee Simple NationsBank
B106 3049038 116 5/1/08 1st 9,270.09 0.14325% 0.1000% Fee Simple BankAmerica
B107 3062114 118 7/1/08 1st 9,056.98 0.14325% 0.1000% Fee Simple BankAmerica
B108 3054780 117 6/1/08 1st 8,966.60 0.14325% 0.1000% Fee Simple BankAmerica
B109 3049020 116 5/1/08 1st 8,442.40 0.14325% 0.1000% Fee Simple BankAmerica
B110 3054830 117 6/1/08 1st 8,367.16 0.14325% 0.1000% Fee Simple BankAmerica
B111 3056850 118 7/1/08 1st 8,285.32 0.14325% 0.1000% Fee Simple BankAmerica
B112 3051091 79 4/1/05 1st 8,191.81 0.14325% 0.1000% Fee Simple BankAmerica
N113 50085 70 7/1/04 1st 8,964.63 0.16825% 0.1250% Fee Simple NationsBank
N114 50411 111 12/1/07 1st 8,233.78 0.14325% 0.1000% Fee Simple NationsBank
B115 3055464 119 8/1/08 1st 7,543.16 0.14325% 0.1000% Fee Simple BankAmerica
B116 3052305 118 7/1/08 1st 7,509.60 0.14325% 0.1000% Fee Simple BankAmerica
B117 3052313 118 7/1/08 1st 7,476.23 0.14325% 0.1000% Fee Simple BankAmerica
B118 3049665 118 7/1/08 1st 7,452.89 0.14325% 0.1000% Fee Simple BankAmerica
B119 3056736 117 6/1/08 1st 7,488.28 0.14325% 0.1000% Fee Simple BankAmerica
B120 3049319 116 5/1/08 1st 7,215.93 0.14325% 0.1000% Fee Simple BankAmerica
N121 50775 117 6/1/08 1st 7,894.27 0.19325% 0.1500% Fee Simple NationsBank
B122 3049004 116 5/1/08 1st 7,197.56 0.14325% 0.1000% Fee Simple BankAmerica
B123 3049012 116 5/1/08 1st 6,952.56 0.14325% 0.1000% Fee Simple BankAmerica
N124 50996 119 8/1/08 1st 6,819.35 0.14325% 0.1000% Fee Simple NationsBank
N125 50413 111 12/1/07 1st 7,421.29 0.16825% 0.1250% Fee Simple NationsBank
B126 3054590 118 7/1/08 1st 6,859.79 0.14325% 0.1000% Fee Simple BankAmerica
B127 3051133 118 7/1/08 1st 6,429.58 0.14325% 0.1000% Fee Simple BankAmerica
B128 3046604 116 5/1/08 1st 6,852.99 0.14325% 0.1000% Fee Simple BankAmerica
N129 50150 168 9/1/12 1st 7,323.71 0.29325% 0.2500% Fee Simple NationsBank
B130 3050903 117 6/1/08 1st 6,325.23 0.14325% 0.1000% Fee Simple BankAmerica
N131 50676 115 4/1/08 1st 7,176.23 0.29325% 0.2500% Fee Simple NationsBank
N132 50742 114 3/1/08 1st 6,440.29 0.29325% 0.2500% Fee Simple NationsBank
N133 50882 118 7/1/08 1st 5,927.55 0.24325% 0.2000% Fee Simple NationsBank
B134 3056751 177 6/1/13 1st 7,829.79 0.14325% 0.1000% Fee Simple BankAmerica
B135 3062445 118 7/1/08 1st 5,607.63 0.14325% 0.1000% Fee Simple BankAmerica
B136 3052297 118 7/1/08 1st 5,039.78 0.14325% 0.1000% Fee Simple BankAmerica
B137 3054798 81 6/1/05 1st 5,810.00 0.14325% 0.1000% Fee Simple BankAmerica
B138 3049749 115 4/1/08 1st 5,149.94 0.14325% 0.1000% Fee Simple BankAmerica
B139 3046398 117 6/1/08 1st 5,080.76 0.14325% 0.1000% Fee Simple BankAmerica
B140 3046422 117 6/1/08 1st 4,765.40 0.14325% 0.1000% Fee Simple BankAmerica
B141 3049756 115 4/1/08 1st 4,397.17 0.14325% 0.1000% Fee Simple BankAmerica
N142 50940 118 7/1/08 1st 4,263.58 0.24325% 0.2000% Fee Simple NationsBank
B143 3050945 117 6/1/08 1st 4,183.36 0.14325% 0.1000% Fee Simple BankAmerica
B144 3050937 117 6/1/08 1st 3,514.02 0.14325% 0.1000% Fee Simple BankAmerica
B145 3050911 117 6/1/08 1st 3,380.15 0.14325% 0.1000% Fee Simple BankAmerica
B146 3049251 177 6/1/13 1st 3,550.72 0.14325% 0.1000% Fee Simple BankAmerica
N147 50886 83 8/1/05 1st 1,137,986.80 0.06325% 0.0200% Fee Simple NationsBank
N148 50774 175 4/1/13 1st 223,107.23 0.10325% 0.0600% Fee Simple NationsBank
N149 50428 179 8/1/13 1st 184,621.44 0.14325% 0.1000% Fee Simple NationsBank
N150 50847 117 6/1/08 1st 127,314.75 0.14325% 0.1000% Fee Simple NationsBank
N151 50861 119 8/1/08 1st 137,021.27 0.14325% 0.1000% Fee Simple NationsBank
1st
N152 50978 119 8/1/08 1st 104,374.07 0.14325% 0.1000% Fee Simple NationsBank
N153 50977 119 8/1/08 1st 15,824.46 0.14325% 0.1000% Fee Simple NationsBank
Fee Simple NationsBank
N154 50838 117 6/1/08 1st 111,896.14 0.10325% 0.0600% Fee Simple NationsBank
N155 50973 179 8/1/13 1st 81,397.47 0.14325% 0.1000% Fee Simple NationsBank
N156 50568 116 5/1/08 1st 76,818.97 0.14325% 0.1000% Fee Simple NationsBank
N157 50514 114 3/1/08 1st 70,900.16 0.14325% 0.1000% Fee Simple NationsBank
N158 50900 118 7/1/08 1st 60,452.88 0.14325% 0.1000% Fee Simple NationsBank
N159 50078 117 6/1/08 1st 70,256.02 0.16825% 0.1250% Fee Simple NationsBank
N160 50651 114 3/1/08 1st 60,347.62 0.10325% 0.0600% Fee Simple NationsBank
B161 3051117 115 4/1/08 1st 54,478.66 0.14325% 0.1000% Fee Simple BankAmerica
N162 50839 117 6/1/08 1st 53,375.14 0.14325% 0.1000% Fee Simple NationsBank
B163 3062320 119 8/1/08 1st 46,905.44 0.14325% 0.1000% Fee Simple BankAmerica
B164 3043320 115 4/1/08 1st 43,805.55 0.14325% 0.1000% Fee Simple BankAmerica
B165 3062379 119 8/1/08 1st 40,735.42 0.14325% 0.1000% Fee Simple BankAmerica
N166 50897 118 7/1/08 1st 40,160.22 0.14325% 0.1000% Fee Simple NationsBank
N167 50896 167 8/1/12 1st 57,975.00 0.14325% 0.1000% Fee Simple NationsBank
N168 50126 108 9/1/07 1st 41,426.17 0.14325% 0.1000% Fee Simple NationsBank
N169 50104 167 8/1/12 1st 7,290.77 0.35325% 0.3100% Fee Simple NationsBank
N170 50109 167 8/1/12 1st 5,622.37 0.35325% 0.3100% Fee Simple NationsBank
N171 50111 167 8/1/12 1st 5,596.96 0.35325% 0.3100% Fee Simple NationsBank
N172 50108 167 8/1/12 1st 5,567.33 0.35325% 0.3100% Fee Simple NationsBank
N173 50107 167 8/1/12 1st 5,436.08 0.35325% 0.3100% Fee Simple NationsBank
N174 50105 167 8/1/12 1st 5,215.93 0.35325% 0.3100% Fee Simple NationsBank
N175 50110 167 8/1/12 1st 4,483.50 0.35325% 0.3100% Fee Simple NationsBank
N176 50106 167 8/1/12 1st 4,411.52 0.35325% 0.3100% Fee Simple NationsBank
N177 50857 118 7/1/08 1st 33,385.64 0.14325% 0.1000% Fee Simple NationsBank
B178 3049814 116 5/1/08 1st 34,224.20 0.14325% 0.1000% Fee Simple BankAmerica
N179 50418 116 5/1/08 1st 37,079.75 0.14325% 0.1000% Fee Simple NationsBank
B180 3054954 238 7/1/18 1st 40,265.79 0.14325% 0.1000% Fee Simple BankAmerica
N181 50559 122 10/31/08 1st 31,006.57 0.14325% 0.1000% Fee Simple NationsBank
N182 50851 142 7/1/10 1st 29,385.83 0.14325% 0.1000% Fee Simple NationsBank
N183 50073 105 6/1/07 1st 34,567.43 0.16825% 0.1250% Fee Simple NationsBank
B184 3052339 117 6/1/08 1st 27,512.73 0.14325% 0.1000% Fee Simple BankAmerica
N185 50850 142 7/1/10 1st 26,613.59 0.14325% 0.1000% Fee Simple NationsBank
B186 3052271 117 6/1/08 1st 27,442.52 0.14325% 0.1000% Fee Simple BankAmerica
N187 50064 166 7/1/12 1st 30,696.93 0.16825% 0.1250% Fee Simple NationsBank
B188 3062395 118 7/1/08 1st 24,229.57 0.14325% 0.1000% Fee Simple BankAmerica
N189 50065 166 7/1/12 1st 29,292.55 0.16825% 0.1250% Fee Simple NationsBank
N190 50738 116 5/1/08 1st 23,551.20 0.14325% 0.1000% Fee Simple NationsBank
N191 50867 82 7/1/05 1st 22,872.02 0.14325% 0.1000% Fee Simple NationsBank
N192 50870 118 7/1/08 1st 21,800.06 0.14325% 0.1000% Fee Simple NationsBank
N193 50667 117 6/1/08 1st 24,623.31 0.14325% 0.1000% Fee Simple NationsBank
N194 50627 113 2/1/08 1st 22,514.97 0.14325% 0.1000% Fee Simple NationsBank
B195 3049186 115 4/1/08 1st 19,699.19 0.14325% 0.1000% Fee Simple BankAmerica
N196 50813 116 5/1/08 1st 21,742.22 0.14325% 0.1000% Fee Simple NationsBank
N197 50124 108 9/1/07 1st 21,705.19 0.14325% 0.1000% Fee Simple NationsBank
N198 50801 114 3/1/08 1st 19,665.23 0.14325% 0.1000% Fee Simple NationsBank
B199 3049129 116 5/1/08 1st 20,102.13 0.14325% 0.1000% Fee Simple BankAmerica
N200 50891 118 7/1/08 1st 21,792.49 0.14325% 0.1000% Fee Simple NationsBank
B201 3062338 118 7/1/08 1st 16,823.58 0.14325% 0.1000% Fee Simple BankAmerica
N202 50707 118 7/1/08 1st 18,604.41 0.12325% 0.0800% Fee Simple NationsBank
N203 50736 115 4/1/08 1st 16,887.18 0.14325% 0.1000% Fee Simple NationsBank
N204 50918 119 8/1/08 1st 15,521.08 0.14325% 0.1000% Fee Simple NationsBank
N205 50136 108 9/1/07 1st 16,415.83 0.16825% 0.1250% Fee Simple NationsBank
N206 50137 108 9/1/07 1st 16,220.40 0.16825% 0.1250% Fee Simple NationsBank
N207 50800 116 5/1/08 1st 24,317.90 0.14325% 0.1000% Fee Simple NationsBank
N208 50149 108 9/1/07 1st 15,522.11 0.14325% 0.1000% Fee Simple NationsBank
N209 50926 118 7/1/08 1st 14,714.84 0.14325% 0.1000% Fee Simple NationsBank
N210 50525 113 2/1/08 1st 14,456.14 0.14325% 0.1000% Fee Simple NationsBank
N211 50151 107 8/1/07 1st 16,483.66 0.16825% 0.1250% Fee Simple NationsBank
B212 3043874 296 5/1/23 1st 14,106.04 0.14325% 0.1000% Fee Simple BankAmerica
B213 3054822 117 6/1/08 1st 13,157.87 0.14325% 0.1000% Fee Simple BankAmerica
N214 50819 115 4/1/08 1st 13,690.59 0.14325% 0.1000% Fee Simple NationsBank
N215 50807 117 6/1/08 1st 12,496.58 0.24325% 0.2000% Fee Simple NationsBank
N216 50225 109 10/1/07 1st 13,120.88 0.19325% 0.1500% Fee Simple NationsBank
N217 50808 117 6/1/08 1st 12,365.59 0.14325% 0.1000% Fee Simple NationsBank
B218 3056728 118 7/1/08 1st 11,563.91 0.14325% 0.1000% Fee Simple BankAmerica
N219 50459 113 2/1/08 1st 12,619.72 0.14325% 0.1000% Fee Simple NationsBank
N220 50747 115 4/1/08 1st 10,276.06 0.14325% 0.1000% Fee Simple NationsBank
N221 50024 104 5/1/07 1st 12,575.05 0.16825% 0.1250% Fee Simple NationsBank
B222 3051836 116 5/1/08 1st 16,469.57 0.14325% 0.1000% Fee Simple BankAmerica
N223 50718 116 5/1/08 1st 8,800.99 0.14325% 0.1000% Fee Simple NationsBank
N224 50593 113 2/1/08 1st 9,728.94 0.14325% 0.1000% Fee Simple NationsBank
B225 3056876 178 7/1/13 1st 12,326.11 0.14325% 0.1000% Fee Simple BankAmerica
N226 50799 115 4/1/08 1st 9,685.02 0.19325% 0.1500% Fee Simple NationsBank
N227 50859 176 5/1/13 1st 11,178.78 0.24325% 0.2000% Fee Simple NationsBank
B228 3062213 118 7/1/08 1st 8,061.19 0.14325% 0.1000% Fee Simple BankAmerica
B229 3054749 117 6/1/08 1st 7,861.54 0.14325% 0.1000% Fee Simple BankAmerica
B230 3062197 118 7/1/08 1st 7,609.36 0.14325% 0.1000% Fee Simple BankAmerica
B231 3054913 117 6/1/08 1st 7,136.50 0.14325% 0.1000% Fee Simple BankAmerica
B232 3062205 118 7/1/08 1st 6,973.84 0.14325% 0.1000% Fee Simple BankAmerica
B233 3062718 119 8/1/08 1st 5,909.56 0.14325% 0.1000% Fee Simple BankAmerica
B234 3051000 116 5/1/08 1st 5,411.49 0.14325% 0.1000% Fee Simple BankAmerica
B235 3051018 176 5/1/13 1st 6,955.21 0.14325% 0.1000% Fee Simple BankAmerica
B236 3052420 236 5/1/18 1st 5,997.89 0.14325% 0.1000% Fee Simple BankAmerica
B237 3047198 175 4/1/13 1st 6,645.21 0.14325% 0.1000% Fee Simple BankAmerica
N238 50892 119 8/1/08 1st 270,437.54 0.11825% 0.0750% Fee Simple NationsBank
N239 50445 134 11/1/09 1st 202,487.36 0.16825% 0.1250% Fee Simple NationsBank
N240 50934 119 8/1/08 1st 155,454.66 0.14325% 0.1000% Fee Simple NationsBank
B241 3055241 118 7/1/08 1st 110,535.16 0.14325% 0.1000% Fee Simple BankAmerica
N242 50833 115 4/1/08 1st 85,005.98 0.14325% 0.1000% Fee Simple NationsBank
B243 3055050 117 6/1/08 1st 59,061.17 0.14325% 0.1000% Fee Simple BankAmerica
B244 3056884 118 7/1/08 1st 40,875.11 0.14325% 0.1000% Fee Simple BankAmerica
B245 3056967 118 7/1/08 1st 37,189.93 0.14325% 0.1000% Fee Simple BankAmerica
B246 3048287 117 6/1/08 1st 36,391.26 0.14325% 0.1000% Fee Simple BankAmerica
N247 50626 114 3/1/08 1st 36,469.79 0.24325% 0.2000% Fee Simple NationsBank
B248 3056785 117 6/1/08 1st 36,014.81 0.14325% 0.1000% Fee Simple BankAmerica
B249 3062494 118 7/1/08 1st 28,497.73 0.14325% 0.1000% Fee Simple BankAmerica
B250 3049764 116 5/1/08 1st 27,588.85 0.14325% 0.1000% Fee Simple BankAmerica
N251 50980 119 8/1/08 1st 24,649.51 0.14325% 0.1000% Fee Simple NationsBank
N252 50641 77 2/1/05 1st 25,416.43 0.14325% 0.1000% Fee Simple NationsBank
N253 50042 69 6/1/04 1st 25,863.13 0.16825% 0.1250% Fee Simple NationsBank
B254 3051976 116 5/1/08 1st 20,522.23 0.14325% 0.1000% Fee Simple BankAmerica
N255 50863 119 8/1/08 1st 18,035.76 0.14325% 0.1000% Fee Simple NationsBank
B256 3062262 118 7/1/08 1st 18,288.91 0.14325% 0.1000% Fee Simple BankAmerica
N257 50449 113 2/1/08 1st 19,163.06 0.14325% 0.1000% Fee Simple NationsBank
N258 50685 114 3/1/08 1st 16,644.98 0.14325% 0.1000% Fee Simple NationsBank
N259 50198 72 9/1/04 1st 16,035.90 0.16825% 0.1250% Fee Simple NationsBank
N260 50517 113 2/1/08 1st 14,362.64 0.14325% 0.1000% Fee Simple NationsBank
N261 50910 118 7/1/08 1st 13,745.57 0.14325% 0.1000% Fee Simple NationsBank
B262 3054525 118 7/1/08 1st 13,227.31 0.14325% 0.1000% Fee Simple BankAmerica
B263 3052263 117 6/1/08 1st 12,663.56 0.14325% 0.1000% Fee Simple BankAmerica
B264 3051893 116 5/1/08 1st 11,775.10 0.14325% 0.1000% Fee Simple BankAmerica
B265 3052123 118 7/1/08 1st 11,417.02 0.14325% 0.1000% Fee Simple BankAmerica
B266 3047693 79 4/1/05 1st 11,308.47 0.14325% 0.1000% Fee Simple BankAmerica
N267 50792 114 3/1/08 1st 10,413.85 0.14325% 0.1000% Fee Simple NationsBank
N268 50820 118 7/1/08 1st 10,919.53 0.14325% 0.1000% Fee Simple NationsBank
B269 3056983 178 7/1/13 1st 13,002.38 0.14325% 0.1000% Fee Simple BankAmerica
B270 3056793 118 7/1/08 1st 9,561.87 0.14325% 0.1000% Fee Simple BankAmerica
B271 3062403 118 7/1/08 1st 9,281.35 0.14325% 0.1000% Fee Simple BankAmerica
B272 3051877 117 6/1/08 1st 9,912.00 0.14325% 0.1000% Fee Simple BankAmerica
N273 50873 178 7/1/13 1st 11,692.74 0.14325% 0.1000% Fee Simple NationsBank
B274 3056975 118 7/1/08 1st 9,534.30 0.14325% 0.1000% Fee Simple BankAmerica
B275 3052156 116 5/1/08 1st 9,274.23 0.14325% 0.1000% Fee Simple BankAmerica
B276 3045333 172 1/1/13 1st 12,192.69 0.14325% 0.1000% Fee Simple BankAmerica
B277 3062346 118 7/1/08 1st 7,841.53 0.14325% 0.1000% Fee Simple BankAmerica
B278 3052404 117 6/1/08 1st 7,960.28 0.14325% 0.1000% Fee Simple BankAmerica
B279 3062312 118 7/1/08 1st 7,667.27 0.14325% 0.1000% Fee Simple BankAmerica
B280 3051174 116 5/1/08 1st 7,916.74 0.14325% 0.1000% Fee Simple BankAmerica
B281 3062361 118 7/1/08 1st 7,307.27 0.14325% 0.1000% Fee Simple BankAmerica
N282 50810 116 5/1/08 1st 7,127.28 0.14325% 0.1000% Fee Simple NationsBank
B283 3049509 118 7/1/08 1st 7,416.60 0.14325% 0.1000% Fee Simple BankAmerica
B284 3056892 118 7/1/08 1st 5,221.46 0.14325% 0.1000% Fee Simple BankAmerica
N285 50696 77 2/1/05 1st 179,835.75 0.14325% 0.1000% Fee Simple NationsBank
N286 50728 77 2/1/05 1st 89,783.47 0.14325% 0.1000% Fee Simple NationsBank
N287 50880 114 3/1/08 1st 267,468.72 0.08325% 0.0400% Fee Simple NationsBank
N288 50879 118 7/1/08 1st 182,792.69 0.13325% 0.0900% Fee Simple NationsBank
B289 3051067 117 6/1/08 1st 63,171.00 0.14325% 0.1000% Fee Simple BankAmerica
B290 3056710 177 6/1/13 1st 77,194.08 0.14325% 0.1000% Fee Simple BankAmerica
N291 50560 78 3/1/05 1st 51,331.76 0.14325% 0.1000% Fee Simple NationsBank
B292 3049608 115 4/1/08 1st 26,164.08 0.14325% 0.1000% Fee Simple BankAmerica
N293 50480 172 1/1/13 1st 36,273.93 0.14325% 0.1000% Fee Simple NationsBank
B294 3054814 118 7/1/08 1st 23,563.61 0.14325% 0.1000% Fee Simple BankAmerica
B295 3062429 119 8/1/08 1st 20,743.83 0.14325% 0.1000% Fee Simple BankAmerica
N296 50719 115 4/1/08 1st 20,032.79 0.14325% 0.1000% Fee Simple NationsBank
B297 3054889 117 6/1/08 1st 17,582.51 0.14325% 0.1000% Fee Simple BankAmerica
B298 3044591 112 1/1/08 1st 16,620.36 0.14325% 0.1000% Fee Simple BankAmerica
B299 3051992 116 5/1/08 1st 14,253.13 0.14325% 0.1000% Fee Simple BankAmerica
N300 50890 83 8/1/05 1st 13,643.53 0.14325% 0.1000% Fee Simple NationsBank
N301 50887 119 8/1/08 1st 14,391.77 0.12325% 0.0800% Fee Simple NationsBank
N302 50700 113 2/1/08 1st 13,777.90 0.14325% 0.1000% Fee Simple NationsBank
B303 3052446 116 5/1/08 1st 12,861.82 0.14325% 0.1000% Fee Simple BankAmerica
B304 3054707 118 7/1/08 1st 11,424.54 0.14325% 0.1000% Fee Simple BankAmerica
B305 3049624 115 4/1/08 1st 12,318.12 0.14325% 0.1000% Fee Simple BankAmerica
B306 3051711 116 5/1/08 1st 11,779.14 0.14325% 0.1000% Fee Simple BankAmerica
B307 3049491 176 5/1/13 1st 14,915.90 0.14325% 0.1000% Fee Simple BankAmerica
B308 3047727 115 4/1/08 1st 10,767.27 0.14325% 0.1000% Fee Simple BankAmerica
B309 3049475 116 5/1/08 1st 10,523.16 0.14325% 0.1000% Fee Simple BankAmerica
B310 3062478 118 7/1/08 1st 9,878.70 0.14325% 0.1000% Fee Simple BankAmerica
B311 3062437 119 8/1/08 1st 8,898.44 0.14325% 0.1000% Fee Simple BankAmerica
B312 3051760 116 5/1/08 1st 9,449.00 0.14325% 0.1000% Fee Simple BankAmerica
B313 3049533 117 6/1/08 1st 8,027.20 0.14325% 0.1000% Fee Simple BankAmerica
B314 3056769 117 6/1/08 1st 8,034.77 0.14325% 0.1000% Fee Simple BankAmerica
B315 3062460 118 7/1/08 1st 7,554.74 0.14325% 0.1000% Fee Simple BankAmerica
B316 3049467 177 6/1/13 1st 10,289.24 0.14325% 0.1000% Fee Simple BankAmerica
B317 3062189 118 7/1/08 1st 7,010.75 0.14325% 0.1000% Fee Simple BankAmerica
B318 3049616 115 4/1/08 1st 7,255.98 0.14325% 0.1000% Fee Simple BankAmerica
N319 50512 116 5/1/08 1st 7,001.15 0.25325% 0.2100% Fee Simple NationsBank
B320 3051703 116 5/1/08 1st 6,243.13 0.14325% 0.1000% Fee Simple BankAmerica
N321 50511 116 5/1/08 1st 6,651.09 0.25325% 0.2100% Fee Simple NationsBank
B322 3056777 117 6/1/08 1st 5,899.73 0.14325% 0.1000% Fee Simple BankAmerica
B323 3050952 115 4/1/08 1st 5,825.56 0.14325% 0.1000% Fee Simple BankAmerica
N324 50834 116 5/1/08 1st 6,095.25 0.14325% 0.1000% Fee Simple NationsBank
B325 3051026 115 4/1/08 1st 5,555.09 0.14325% 0.1000% Fee Simple BankAmerica
B326 3056942 178 7/1/13 1st 4,991.14 0.14325% 0.1000% Fee Simple BankAmerica
N327 50868 111 12/1/07 1st 211,896.61 0.14325% 0.1000% Fee Simple NationsBank
N328 50856 118 7/1/08 1st 82,678.77 0.14325% 0.1000% Fee Simple NationsBank
N329 50701 115 4/1/08 1st 57,834.78 0.14325% 0.1000% Fee Simple NationsBank
N330 50846 118 7/1/08 1st 34,744.30 0.14325% 0.1000% Fee Simple NationsBank
N331 50869 118 7/1/08 1st 32,565.95 0.14325% 0.1000% Fee Simple NationsBank
N332 50928 118 7/1/08 1st 24,714.95 0.14325% 0.1000% Fee Simple NationsBank
N333 50875 119 8/1/08 1st 30,750.56 0.14325% 0.1000% Fee Simple NationsBank
N334 50872 118 7/1/08 1st 24,546.31 0.14325% 0.1000% Fee Simple NationsBank
N335 50505 116 5/1/08 1st 20,101.89 0.14325% 0.1000% Fee Simple NationsBank
N336 50693 116 5/1/08 1st 18,810.67 0.24325% 0.2000% Fee Simple NationsBank
N337 50783 115 4/1/08 1st 19,304.90 0.14325% 0.1000% Fee Simple NationsBank
N338 50816 117 6/1/08 1st 17,136.42 0.14325% 0.1000% Fee Simple NationsBank
B339 3052412 117 6/1/08 1st 28,793.07 0.14325% 0.1000% Fee Simple BankAmerica
B340 3062940 119 8/1/08 1st 26,349.36 0.14325% 0.1000% Fee Simple BankAmerica
N341 50939 118 7/1/08 1st 22,702.13 0.14325% 0.1000% Fee Simple NationsBank
B342 3051778 116 5/1/08 1st 23,883.29 0.14325% 0.1000% Fee Simple BankAmerica
N343 50938 118 7/1/08 1st 21,804.31 0.14325% 0.1000% Fee Simple NationsBank
B344 3049350 116 5/1/08 1st 21,711.98 0.14325% 0.1000% Fee Simple BankAmerica
B345 3051869 117 6/1/08 1st 21,328.54 0.14325% 0.1000% Fee Simple BankAmerica
B346 3049301 116 5/1/08 1st 17,406.47 0.14325% 0.1000% Fee Simple BankAmerica
B347 3056918 119 8/1/08 1st 12,680.63 0.14325% 0.1000% Fee Simple BankAmerica
B348 3052180 116 5/1/08 1st 10,969.49 0.14325% 0.1000% Fee Simple BankAmerica
B349 3056926 119 8/1/08 1st 10,124.74 0.14325% 0.1000% Fee Simple BankAmerica
B350 3062148 118 7/1/08 1st 8,855.91 0.14325% 0.1000% Fee Simple BankAmerica
B351 3062916 119 8/1/08 1st 8,411.36 0.14325% 0.1000% Fee Simple BankAmerica
B352 3051828 81 6/1/05 1st 8,330.92 0.14325% 0.1000% Fee Simple BankAmerica
B353 3047990 179 8/1/13 1st 8,930.80 0.14325% 0.1000% Fee Simple BankAmerica
N354 50164 168 9/1/12 1st 53,419.75 0.21825% 0.1750% Fee Simple NationsBank
N355 50192 168 9/1/12 1st 31,942.59 0.21825% 0.1750% Fee Simple NationsBank
N356 50278 170 11/1/12 1st 38,134.73 0.14325% 0.1000% Fee Simple NationsBank
N357 50802 177 6/1/13 1st 32,101.33 0.21825% 0.1750% Fee Simple NationsBank
N358 50690 114 3/1/08 1st 26,674.49 0.21825% 0.1750% Fee Simple NationsBank
N359 50000 100 1/1/07 1st 28,115.37 0.24325% 0.2000% Fee Simple NationsBank
N360 50561 113 2/1/08 1st 17,709.71 0.14325% 0.1000% Fee Simple NationsBank
N361 50670 114 3/1/08 1st 17,146.96 0.14325% 0.1000% Fee Simple NationsBank
N362 50531 112 1/1/08 1st 17,294.48 0.14325% 0.1000% Fee Simple NationsBank
N363 50821 116 5/1/08 1st 15,014.78 0.14325% 0.1000% Fee Simple NationsBank
N364 50528 113 2/1/08 1st 8,562.98 0.14325% 0.1000% Fee Simple NationsBank
N365 50908 118 7/1/08 1st 17,472.70 0.14325% 0.1000% Fee Simple NationsBank
N366 50907 118 7/1/08 1st 13,550.25 0.14325% 0.1000% Fee Simple NationsBank
B367 3049525 116 5/1/08 1st 27,636.96 0.14325% 0.1000% Fee Simple BankAmerica
B368 3043155 112 1/1/08 1st 18,960.43 0.14325% 0.1000% Fee Simple BankAmerica
B369 3062130 118 7/1/08 1st 13,759.08 0.14325% 0.1000% Fee Simple BankAmerica
B370 3056959 118 7/1/08 1st 7,296.83 0.14325% 0.1000% Fee Simple BankAmerica
B371 3049178 115 4/1/08 1st 7,320.19 0.14325% 0.1000% Fee Simple BankAmerica
N372 50324 111 12/1/07 1st 51,663.02 0.20325% 0.1600% Fee Simple NationsBank
N373 50323 111 12/1/07 1st 32,693.69 0.20325% 0.1600% Fee Simple NationsBank
N374 50320 111 12/1/07 1st 16,344.53 0.20325% 0.1600% Fee Simple NationsBank
N375 50321 111 12/1/07 1st 13,697.33 0.20325% 0.1600% Fee Simple NationsBank
N376 50829 117 6/1/08 1st 39,870.41 0.14325% 0.1000% Fee Simple NationsBank
120
</TABLE>
<PAGE>
SCHEDULE II
SUB-SERVICING AGREEMENTS IN EFFECT
AS OF THE CLOSING DATE
NationsBank, N.A. Sub-Servicing Agreement
Agreement (with respect to each of the Subservicers listed below)
- -----------------------------------------------------------------
Amended and Restated Master Subservicing Agreement for Securitization
Transactions, dated as of March 25, 1998, among NationsBank, N.A., Bankers
Mutual, a division of Franchise Mortgage Acceptance Company (successor in
interest to Bankers Mutual Mortgage, Inc.), Berkshire Mortgage Finance
Corporation, First Security Bank, N.A., L.J. Melody & Company, Midland Loan
Services, Inc. (successor in interest to Midland Loan Services, L.P.), Patrician
Financial Company Limited Partnership and WMF Washington Mortgage Corp.
(successor in interest to Washington Mortgage Financial Group, Ltd.), as
supplemented by Subservicer Addition Agreements dated September 25, 1998
executed by ARCS Commercial Mortgage Co., L.P., a California limited
partnership, and Bank of America NT&SA, and as supplemented by the Confirmation
thereto dated September 25, 1998.
Subservicers
- ------------
ARCS Commercial Mortgage Co., L.P., a California limited partnership
Bank of America NT&SA
Bankers Mutual, a division of Franchise Mortgage Acceptance Company
Berkshire Mortgage Finance Corporation
First Security Bank, N.A.
L.J. Melody & Company
Midland Loan Services, Inc.
Patrician Financial Company Limited Partnership
WMF Washington Mortgage Corp.
<PAGE>
SCHEDULE III
Schedule of Mortgage Loans Permitting Certain Releases
Control Loan
Number Number Property Name Description of Permitted Release
- ------- ------ --------------------------- --------------------------------
50892 Journal Square Plaza II Air rights (not considered in
underwriting the loan) may be
released without consideration.
<PAGE>
SCHEDULE IV
Schedule of Mortgage Loans Permitting
Future Subordinate Liens on Mortgaged Properties
Control Loan
Number Number Property Name Description of Permitted Lien
- ------- ------ --------------------------- -----------------------------
50934 National Guard Building Future subordinate debt up to
$3,800,000 is permitted subject
to requirement of a standstill
agreement and other conditions.
50445 Park Center Building I Future subordinate debt up to
$3,000,000 is permitted subject
to requirement of a standstill
agreement and other conditions.
50078 Market Place at Webb Future subordinate debt is
permitted, up to $25,000.
50693 Howard Johnson Inn Furniture, fixtures and
equipment debt is permitted, up
to $205,000.
50568 Okee Square Shopping Center Future subordinate debt
permitted subject to compliance
with specified debt service
coverage ratios and other
conditions.
50920 Southwest Village Apartments Future subordinate debt
permitted subject to compliance
with specified debt service
coverage ratios and other
conditions.
50560 Inner Belt Industrial Center Future subordinate debt up to
$1,250,000 is permitted subject
to requirement of standstill
agreement and other conditions.
<PAGE>
SCHEDULE V
Bank of America Mortgage Loan Exception Schedule
Section 2.05(c)(xiv)
- --------------------
Exceptions to Underwriting Standards
- ------------------------------------
O&M Plan Not Yet Obtained
3049038 White Crane Building
3049012 The Grace
3056926 Stonegate Mobile Home Park
3062247 Saint Francis Towers
3049004 The Buckingham
3049020 Sheffiled Apartments
3051125 Village Apartments
3051133 Bear Creek North Apartments
3052412 Bonita Paradise MHP
3049756 Margaret Ann Apartments
3049712 110 Delaware Apartments
3049608 Clark Foods #1
3049616 Clark Foods #3
3056884 Peninsula Professional Building
3054814 Jarrett Building
<PAGE>
SCHEDULE VI
SCHEDULE OF EXCEPTIONS TO MORTGAGE FILE DELIVERY
[None]
<PAGE>
November 19, 1998
To the Persons Named on
Schedule 1 Hereto:
Re: NationsLink Funding Corporation,
Commercial Mortgage Pass-Through Certificates, Series 1998-2
------------------------------------------------------------
Ladies and Gentlemen:
We are rendering this opinion letter pursuant to Section 6(b) of that
certain Underwriting Agreement, dated November 5, 1998 (the "Underwriting
Agreement"), by and between NationsLink Funding Corporation ("NationsLink") and
NationsBanc Montgomery Securities LLC ("NationsBanc Montgomery"), as underwriter
(in such capacity, the "Underwriter"), and Section 3(e) of that certain Private
Placement Agency Agreement, dated as of November 17, 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 1998-2 (the "Certificates"), consisting of fifteen classes:
the Class A-1 Certificates, the Class A-2 Certificates, the Class X
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, the Class R-II Certificates and the
Class R-III 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 X, 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 and, to the extent not previously placed pursuant to
that certain Private Placement Agency Agreement dated as of September 23, 1998,
the Class G Certificates (the Class F and such Class G Certificates
collectively, the "Privately Placed Certificates").
The Certificates are governed by that certain Amended and Restated Pooling
and Servicing Agreement, dated as of November 1, 1998 (the "Pooling and
Servicing Agreement"), by and among NationsLink, as depositor, NationsBank,
N.A., as mortgage loan seller, Bank of America NT&SA, as an additional
warranting party, Midland Loan Services, Inc., 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 November 5, 1998 and relating to the Publicly Offered
Certificates, the Private Placement Memorandum dated November 17, 1998 relating
to the Privately Placed Certificates, specimen forms of the Publicly Offered
Certificates and the Privately Placed 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 Publicly Offered Certificates and the Privately Placed
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 Original Pooling Agreement as in
effect on the Original Closing Date and compliance with the Pooling and
Servicing Agreement from and after the Sequel Closing Date, (a) REMIC I and
REMIC II will each continue to qualify, and REMIC III will 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 LA-1
Uncertificated Interest, Class LA-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, Class LJ 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; (c) the Class MA-1 Uncertificated
Interest, Class MA-2 Uncertificated Interest, Class MB Uncertificated Interest,
Class MC Uncertificated Interest, Class MD Uncertificated Interest, Class ME
Uncertificated Interest, Class MF Uncertificated Interest and Class MX
Uncertificated Interest and the 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; (d) the Class A-1, Class A-2, Class X, Class B,
Class C, Class D, Class E and Class F Certificates will constitute "regular
interests" in REMIC III and the Class R-III Certificates will constitute the
sole class of "residual interest" in REMIC III within the meaning of the Code;
and (e) the amendment and restatement of the Original Pooling Agreement effected
by the Pooling and Servicing Agreement will not result in the imposition of any
tax on REMIC I, REMIC II or REMIC III or cause REMIC I, REMIC II or REMIC III to
fail to qualify as a REMIC at any time that any Certificates are outstanding.
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,
/s/ Cadwalader, Wickersham & Taft
<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
NationsBank, N.A.
100 North Tryon Street
Charlotte, North Carolina 28255
Bank of America NT&SA
50 California Street, 12th Floor
San Francisco, California 94104
Moody's Investors Service, Inc.
99 Church Street
New York, New York 10007
Standard & Poor's Ratings Services,
a division of the McGraw-Hill Companies, Inc.
25 Broadway
New York, New York 10004
Midland Loan Services, Inc.
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
