SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K/A
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(D) OF THE
SECURITIES AND EXCHANGE ACT OF 1934
Date of Report: December 8, 1999
(Date of earliest event reported)
NationsLink Funding Corporation
- --------------------------------------------------------------------------------
(Exact name of registrant as specified in its charter)
Delaware 333-66805 56-1950039
- --------------------------------------------------------------------------------
(State or Other (Commission (I.R.S. Employer
Jurisdiction of File Number) Identification No.)
Incorporation)
Bank of America Corporate Center, 100 North Tryon Street, Charlotte, NC 28255
- --------------------------------------------------------------------------------
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (704) 386-2400
<PAGE>
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND EXHIBITS
(c) Exhibits
Item 601(a) of
Regulation S-K
Exhibit No. Exhibit No. Description
----------- ----------- -----------
1 4 Second Amended and Restated Pooling
and Servicing Agreement. (Corrected
copy; this agreement replaces, in its
entirety, all of the agreement filed
on December 8, 1999 under Item 7,
Exhibit 4, pursuant to Form 8-K dated
December 8, 1999.)
<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
---------------------------------
Name: James E. Naumann
Title: Senior Vice President
Date: December 23, 1999
================================================================================
NATIONSLINK FUNDING CORPORATION,
Depositor,
BANK OF AMERICA, N.A.
Mortgage Loan Seller,
ORIX REAL ESTATE CAPITAL MARKETS, LLC,
Master Servicer and Special Servicer,
and
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION,
Trustee and REMIC Administrator,
---------------------------------
SECOND AMENDED AND RESTATED
POOLING AND SERVICING AGREEMENT
Dated as of November 1, 1999
(Amending and Restating the Amended and Restated Pooling Agreement
dated as of October 1, 1999, which had amended and restated the Pooling
and Servicing Agreement dated as of August 1, 1999)
---------------------------
Commercial Mortgage Pass-Through Certificates
Series 1999-2
================================================================================
<PAGE>
TABLE OF CONTENTS
Section
ARTICLE I
DEFINITIONS; CERTAIN CALCULATIONS IN RESPECT OF THE MORTGAGE POOL
AND THE CERTIFICATES
SECTION 1.01 Defined Terms...............................................
SECTION 1.02 Certain Calculations in Respect of the Mortgage Pool........
SECTION 1.03 Incorporation of Preliminary Statement......................
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS; REPRESENTATIONS AND WARRANTIES;
ORIGINAL ISSUANCE OF CERTIFICATES
SECTION 2.01 Conveyance of Mortgage Loans.................................
SECTION 2.02 Acceptance of REMIC I by Trustee.............................
SECTION 2.03 Mortgage Loan Seller's Repurchase of Mortgage Loans for
Document Defects and Certain Breaches of Representations and
Warranties..................................................
SECTION 2.04 Representations and Warranties of the Depositor..............
SECTION 2.05 Representations and Warranties of the Mortgage Loan Seller...
SECTION 2.06 Representations and Warranties of the Master Servicer........
SECTION 2.07 Representations and Warranties of the Special Servicer.......
SECTION 2.08 Representations and Warranties of the Trustee and the REMIC
Administrator...............................................
SECTION 2.09 Issuance of the Class R-I Certificates; Creation of the
REMIC I Regular Interests...................................
SECTION 2.10 Conveyance of REMIC I Regular Interests; Acceptance of
REMIC II by the Trustees....................................
SECTION 2.11 Issuance of the Class R-II Certificates; Creation of the
REMIC II Regular Interests..................................
SECTION 2.12 Conveyance of the Class MA-1, Class MA-2 and Class MX
Uncertificated Interests; Acceptance of such Interests by
the Trustee.................................................
SECTION 2.13 Issuance of the Class R-III Certificates; Creation of the
REMIC III Regular Interests.................................
SECTION 2.14 Conveyance of the Class MA-3, Class MA-4, Class MA-5,
Class MA-1C and Class MA-2C Uncertificated Interests;
Acceptance of such Interests by the Trustee.................
SECTION 2.15 Issuance of the Class R-IIIU Certificates; Creation of the
the REMIC IIIU Uncertificated Regular Interests.............
SECTION 2.16 Conveyance of the Class UA-2, Class UA-3, Class UA-4,
Class UA-1C, Class UA-2C, Class UX and Class MB
Uncertificated Interests; Acceptance of such Interests
by the Trustee..............................................
SECTION 2.17 Issuance of the REMIC IV Certificates........................
ARTICLE III
ADMINISTRATION AND SERVICING OF THE TRUST FUND
SECTION 3.01 Administration of the Mortgage Loans.........................
SECTION 3.02 Collection of Mortgage Loan Payments.........................
SECTION 3.03 Collection of Taxes, Assessments and Similar Items;
Servicing Accounts; Servicing Advances; Reserve Accounts....
SECTION 3.04 Certificate Account, the Distribution Account, the
REMIC II Distribution Account, the REMIC III Distribution
Account, the REMIC IIIU Distribution Account and the
REMIC IV Distribution Account...............................
SECTION 3.05 Permitted Withdrawals From the Certificate Account and the
Distribution Account........................................
SECTION 3.06 Investment of Funds in the Certificate Account, the
Interest Reserve Account and the REO Account................
SECTION 3.07 Maintenance of Insurance Policies; Errors and Omissions and
Fidelity Coverage...........................................
SECTION 3.08 Enforcement of Due-On-Sale Clauses; Assumption Agreements;
Subordinate Financing.......................................
SECTION 3.09 Realization Upon Defaulted Mortgage Loans....................
SECTION 3.10 Trustee to Cooperate; Release of Mortgage Files..............
SECTION 3.11 Servicing Compensation; Interest on Servicing Advances;
Payment of Certain Expenses; Obligations of the Trustee
Regarding Back-up Servicing Advances........................
SECTION 3.12 Inspections; Collection of Financial Statements..............
SECTION 3.13 Annual Statement as to Compliance............................
SECTION 3.14 Reports by Independent Public Accountants....................
SECTION 3.15 Access to Certain Information................................
SECTION 3.16 Title to REO Property; REO Account...........................
SECTION 3.17 Management of REO Property...................................
SECTION 3.18 Sale of Mortgage Loans and REO Properties....................
SECTION 3.19 Additional Obligations of the Master Servicer and the
Special Servicer............................................
SECTION 3.20 Modifications, Waivers, Amendments and Consents..............
SECTION 3.21 Transfer of Servicing Between Master Servicer and Special
Servicer; Record Keeping; Asset Status Report...............
SECTION 3.22 Sub-Servicing Agreements.....................................
SECTION 3.23 Designation of Special Servicer by the Majority
Certificateholder of the Controlling Class..................
SECTION 3.24 Confidentiality..............................................
SECTION 3.25 No Solicitation of Prepayments...............................
SECTION 3.26 Certain Matters with Respect to Loans Permitting
Defeasance, Franchise Loans and Certain Loans Permitting
Additional Debt.............................................
SECTION 3.27 Year 2000 Compliance.........................................
SECTION 3.28 Maintenance of Portfolio Mortgage Loan Environmental
Policy......................................................
ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS AND RELATED MATTERS
SECTION 4.01 Distributions on the Certificates............................
SECTION 4.02 Statements to Certificateholders; Certain Reports by the
Master Servicer and the Special Servicer....................
SECTION 4.03 P&I Advances.................................................
SECTION 4.04 Allocation of Realized Losses and Additional Trust Fund
Expenses....................................................
SECTION 4.05 Interest Reserve Account.....................................
ARTICLE V
THE CERTIFICATES
SECTION 5.01 The Certificates.............................................
SECTION 5.02 Registration of Transfer and Exchange of Certificates........
SECTION 5.03 Book-Entry Certificates......................................
SECTION 5.04 Mutilated, Destroyed, Lost or Stolen Certificates............
SECTION 5.05 Persons Deemed Owners........................................
SECTION 5.06 Certification by Certificate Owners..........................
SECTION 5.07 Regarding the Identification of Certain Certificateholders...
ARTICLE VI
THE DEPOSITOR, THE MORTGAGE LOAN SELLER, THE MASTER SERVICER,
THE SPECIAL SERVICER AND THE REMIC ADMINISTRATOR
SECTION 6.01 Liability of the Depositor, the Mortgage Loan
Seller, the Master Servicer, the Special Servicer
and the REMIC Administrator.................................
SECTION 6.02 Merger, Consolidation or Conversion of the Depositor, the
Mortgage Loan Seller, the Master Servicer, the Special
Servicer or the REMIC Administrator.........................
SECTION 6.03 Limitation on Liability of the Depositor, the Master
Servicer, the Special Servicer, the REMIC Administrator
and Others..................................................
SECTION 6.04 Master Servicer, Special Servicer and REMIC Administrator
Not to Resign...............................................
SECTION 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
SECTION 7.01 Events of Default............................................
SECTION 7.02 Trustee to Act; Appointment of Successor.....................
SECTION 7.03 Notification to Certificateholders...........................
SECTION 7.04 Waiver of Events of Default..................................
SECTION 7.05 Additional Remedies of Trustee Upon Event of Default.........
ARTICLE VIII
CONCERNING THE TRUSTEE
SECTION 8.01 Duties of Trustee............................................
SECTION 8.02 Certain Matters Affecting the Trustee........................
SECTION 8.03 Trustee Not Liable for Validity or Sufficiency of
Certificates or Mortgage Loans..............................
SECTION 8.04 Trustee May Own Certificates.................................
SECTION 8.05 Fees of Trustee; Indemnification of Trustee..................
SECTION 8.06 Eligibility Requirements for Trustee.........................
SECTION 8.07 Resignation and Removal of the Trustee.......................
SECTION 8.08 Successor Trustee............................................
SECTION 8.09 Merger or Consolidation of Trustee...........................
SECTION 8.10 Appointment of Co-Trustee or Separate Trustee................
SECTION 8.11 Appointment of Custodians....................................
SECTION 8.12 Access to Certain Information................................
SECTION 8.13 Filings with the Securities and Exchange Commission..........
SECTION 8.14 Year 2000 Compliance.........................................
SECTION 8.15 Maintenance of Mortgage File.................................
ARTICLE IX
TERMINATION
SECTION 9.01 Termination Upon Repurchase or Liquidation of All
Mortgage Loans..............................................
SECTION 9.02 Additional Termination Requirements..........................
ARTICLE X
ADDITIONAL REMIC PROVISIONS
SECTION 10.01 REMIC Administration.........................................
SECTION 10.02 Depositor, Master Servicer, Special Servicer and Trustee
to Cooperate with REMIC Administrator.......................
SECTION 10.03 Fees of the REMIC Administrator..............................
SECTION 10.04 Use of Agents................................................
ARTICLE XI
MISCELLANEOUS PROVISIONS
SECTION 11.01 Amendment....................................................
SECTION 11.02 Recordation of Agreement; Counterparts.......................
SECTION 11.03 Limitation on Rights of Certificateholders...................
SECTION 11.04 Governing Law................................................
SECTION 11.05 Notices......................................................
SECTION 11.06 Severability of Provisions...................................
SECTION 11.07 Successors and Assigns; Beneficiaries........................
SECTION 11.08 Article and Section Headings.................................
SECTION 11.09 Notices to and from Rating Agencies..........................
SECTION 11.10 Requests for Information; Standing Requests..................
<PAGE>
LIST OF EXHIBITS AND SCHEDULES
EXHIBIT A-1 Form of Class A-1 Certificate
EXHIBIT A-2 Form of Class A-2 Certificate
EXHIBIT A-3 Form of Class A-3 Certificate
EXHIBIT A-4 Form of Class A-4 Certificate
EXHIBIT A-5 Form of Class A-1C Certificate
EXHIBIT A-6 Form of Class A-2C Certificate
EXHIBIT A-7 Form of Class X Certificate
EXHIBIT A-8 Form of Class B Certificate
EXHIBIT A-9 Form of Class C Certificate
EXHIBIT A-10 Form of Class D Certificate
EXHIBIT A-11 Form of Class E Certificate
EXHIBIT A-12 Form of Class F Certificate
EXHIBIT A-13 Form of Class G Certificate
EXHIBIT A-14 Form of Class H Certificate
EXHIBIT A-15 Form of Class J Certificate
EXHIBIT A-16 Form of Class K Certificate
EXHIBIT A-17 Form of Class R-I Certificate
EXHIBIT A-18 Form of Class R-II Certificate
EXHIBIT A-19 Form of Class R-III Certificate
EXHIBIT A-20 Form of Class R-IIIU Certificate
EXHIBIT A-21 Form of Class R-IV 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
EXHIBIT I Form of Interim Custodial Certification
EXHIBIT J Form of Final Custodial Certification
EXHIBIT K Form of Operating Statement Analysis Report
EXHIBIT L Servicer Watch List
EXHIBIT M Operating Statement Analysis Worksheet
EXHIBIT N Environmental Policy
SCHEDULE I Mortgage Loan Schedule
SCHEDULE II Exceptions to Portfolio Mortgage Loan Representation (iv)
SCHEDULE III Exceptions to Portfolio Mortgage Loan Representation (v)
SCHEDULE IV Certain Mortgage Loans Covered In Portfolio Mortgage Loan
Representation (v)
SCHEDULE V Exceptions to Portfolio Mortgage Loan Representation (vi)
SCHEDULE VI Exceptions to Portfolio Mortgage Loan Representation (xiii)
SCHEDULE VII Exceptions to Portfolio Mortgage Loan Representation (xvii)
SCHEDULE VIII Exceptions to Portfolio Mortgage Loan Representation (xxii)
SCHEDULE IX Exceptions to Portfolio Mortgage Loan Representation (xxviii)
SCHEDULE X Exceptions to Portfolio Mortgage Loan Representation (xxxviii)
SCHEDULE XI Exceptions to Portfolio Mortgage Loan Representation (xlii)
SCHEDULE XII Exceptions to Portfolio Mortgage Loan Representation (xliv)
SCHEDULE XIII Exceptions to Portfolio Mortgage Loan Representation (xlvii)
SCHEDULE XIV Exceptions to Portfolio Mortgage Loan Representation (xlix)
SCHEDULE XV Exceptions to Portfolio Mortgage Loan Representation (l)
SCHEDULE XVI Exceptions to Portfolio Mortgage Loan Representation (lix)
SCHEDULE XVII Exceptions to Conduit Mortgage Loan Representation (v)
SCHEDULE XVIII Exceptions to Conduit Mortgage Loan Representation (xiv)
SCHEDULE XIX Exceptions to Conduit Mortgage Loan Representation (xliii)
SCHEDULE XX Exceptions to Conduit Mortgage Loan Representation (xlvi)(C)
SCHEDULE XXI Exceptions to Conduit Mortgage Loan Representation (xlviii)(B)
SCHEDULE XXII Exceptions to Conduit Mortgage Loan Representation (xlviii)(C)
SCHEDULE XXIII Exceptions to Conduit Mortgage Loan Representation (xlviii)(J)
SCHEDULE XXIV Exceptions to Conduit Mortgage Loan Representation (lx)
SCHEDULE XXV Schedule of Mortgage Loans Under Section 3.08(e)
SCHEDULE XXVI Sub-Servicing Agreements in Effect as of the Original
Closing Date
<PAGE>
This Second Amended and Restated Pooling and Servicing Agreement
(this "Agreement"), is dated and effective as of November 1, 1999, among
NATIONSLINK FUNDING CORPORATION, as Depositor, BANK OF AMERICA, N.A., as
Mortgage Loan Seller, ORIX REAL ESTATE CAPITAL MARKETS, LLC, as Master Servicer
and as Special Servicer, and NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION, as
Trustee and as REMIC Administrator.
PRELIMINARY STATEMENT:
This Agreement, dated and effective as of November 1, 1999, amends
and restates the Amended and Restated Pooling and Servicing Agreement, dated as
of October 1, 1999 (the "First Amended Pooling Agreement"), which had amended
and restated the Pooling and Servicing Agreement, dated as of August 1, 1999
among NationsLink Funding Corporation, as Depositor, Bank of America, N.A., as
Mortgage Loan Seller, ORIX Real Estate Capital Markets, LLC, as Master Servicer
and as Special Servicer, and Norwest Bank Minnesota, National Association, as
Trustee and as REMIC Administrator (the "Original Pooling Agreement"). This
Agreement is being executed at the direction of the holders of Certificates
entitled to 100% of the Voting Rights allocated to the Class A-3, Class A-4,
Class A-5, Class A-1C, Class A-2C, Class B, Class C, Class D and Class X
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 the Class A-3, Class A-4 Class A-5 Certificates to be
restructured, and redesignated as the Class A-2, Class A-3 and Class A-4
Certificates, (ii) re-setting the principal balances of and/or the pass-through
rates applicable to the Class A-2, Class A-3 and Class A-4 Certificates (as so
redesignated) and the Class A-1C, Class A-2C and Class B Certificates, (iii)
making two additional REMIC elections with respect to the Trust Fund and (iv)
providing for the book-entry registration of such Certificates. For the
avoidance of doubt, it is noted that the first Distribution Date on the New
Certificates hereunder shall be the Distribution Date in December 1999, and the
changes made hereby are effective in respect of such Distribution Date for the
full related Interest Accrual Period that began November 1, 1999.
The Depositor issued the Original Certificates on August 17, 1999
pursuant to the Original Pooling Agreement. Interests in the Trust established
by the Original Pooling Agreement corresponding to the Class A-2, Class A-3 and
Class A-4 Certificates (as so redesignated hereby) and the Class A-1C, Class
A-2C, Class B and Class X 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. Pursuant to this
amendment, effective on the Second 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 certain uncertificated interests,
the New Certificates and the Class R-IIIU and Class R-IV Certificates. No
changes to the First Amended Pooling Agreement are made hereby with respect to
the Class A-1 Certificates (the "Unaffected REMIC III Certificates"), and no
changes to the Original Pooling Agreement are made hereby with respect to the
Class C, Class D, Class E, Class F, Class G, Class H, Class J and Class K
Certificates (the "Unaffected REMIC II Certificates" and, collectively with the
Unaffected REMIC III Certificates, the "Unaffected Certificates"), or to the
Class R-I, Class R-II and Class R-III Certificates, and in this and every other
respect, except as expressly amended hereby, the Original Pooling Agreement, as
amended and restated by the First Amended Pooling Agreement, continues in full
force and effect as further 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, as amended and restated by the First Amended Pooling Agreement, shall
not in any way affect the rights or obligations of a Sub-Servicer under the
Amended and Restated Master Subservicing Agreement for Securitization
Transactions, dated as of March 25, 1998 among Bank of America, N.A. (successor
interest to NationsBank, N.A.), Bankers Mutual, (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 as of September 25, 1998 executed by ARCS
Commercial Mortgage Co., L.P., a California Limited Partnership, and Bank of
America, N.A. (successor in interest to Bank of America NT&SA), and as made
applicable to the securitization transaction contemplated by this Agreement by
the related Confirmation, dated as of August 17, 1999, executed by the
Sub-Servicers listed on Schedule XXVI.
As provided herein, the Trustee will elect that the Trust Fund be
treated for federal income tax purposes as five separate real estate mortgage
investment conduits ("REMIC I," "REMIC II," "REMIC III," "REMIC IIIU"and "REMIC
IV", respectively). The Class A-2, Class A-3, Class A-4, Class A-1C, Class A-2C,
Class B and Class X Certificates constitute "regular interests" in REMIC IV, and
the Class R-IV Certificate constitutes the sole class of "residual interest" in
REMIC IV for purposes of the REMIC Provisions. The Class UA-2, Class UA-3, Class
UA-4, Class UA-1C and Class UA-2C Uncertificated Interests constitute "regular
interests" in REMIC IIIU, and the Class R-IIIU Certificates constitute the sole
class of "residual interest" in REMIC IIIU for purposes of the REMIC Provisions.
The Class A-1 Certificates and the Class UX Uncertificated Interest 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 C, Class D, Class E, Class F, Class G, Class H, Class J
and Class K Certificates and the Class MA-1, Class MA-2, Class MA-3, Class MA-4,
Class MA-5, Class MA-1C, Class MA-2C, Class MB and Class MX Uncertificated
Interests constitute "regular interests" in REMIC II, and the Class R-II
Certificates constitute the sole class of "residual interest" in REMIC II for
purposes of the REMIC Provisions. The Class LA-1, Class LA-2, Class LA-3, Class
LA-4, Class LA-5, Class LA-1C, Class LA-2C, 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 as of the Second Sequel Closing Date:
Initial Class
Designation Issuing REMIC Pass-Through Rate Principal Balance
- ----------- ------------- ----------------- -----------------
Class A-1 III 6.478% per annum $167,062,105
Class A-2 IV 6.8460% per annum $84,648,789
Class A-3 IV 7.1810% per annum(1) $232,000,439
Class A-4 IV 7.2940% per annum(1) $110,485,256
Class A-1C IV 7.0300% per annum $103,960,279
Class A-2C IV 7.2290% per annum(1) $114,048,463
Class X IV Variable(2) N/A(3)
Class B IV 7.5320% per annum(1) $56,107,669
Class C II 7.6626% per annum(2) $44,886,135
Class D II 7.6626% per annum(2) $67,329,203
Class E II 6.32% per annum $16,832,300
Class F II 5.00% per annum $56,107,669
Class G II 5.00% per annum $8,416,150
Class H II 6.00% per annum $22,443,067
Class J II 6.00% per annum $2,805,383
Class K II 6.00% per annum $28,053,840
- ---------------------------------
(1) The Pass-Through Rate for the Class A-3, Class A-4, Class A-2C and Class B
Certificates will not exceed the Weighted Average Adjusted Net Mortgage
Rate for such Distribution Date.
(2) Pass-Through Rate as of the Second Sequel Closing Date. The Pass-Through
Rates for the Class C and Class D Certificates for each Distribution Date
shall be equal to the Weighted Average Adjusted Net Mortgage Rate for such
Distribution Date.
(3) Calculated in accordance with the definition of "Class X Pass-Through
Rate".
(4) 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.
The following table sets forth the designation, the initial
Uncertificated Principal Balances and per annum rates of interest for the REMIC
I Regular Interests as of the Second Sequel Closing Date:
REMIC I Initial
Regular Interest REMIC I Uncertificated
Designation Remittance Rate Principal Balance
----------- --------------- -----------------
Class LA-1 (1) $117,428,689
Class LA-2 (1) $49,633,396
Class LA-3 (1) $61,860,297
Class LA-4 (1) $250,372,639
Class LA-5 (1) $114,901,548
Class LA-1C (1) $97,414,278
Class LA-2C (1) $120,594,464
Class LB (1) $56,107,669
Class LC (1) $44,886,135
Class LD (1) $67,329,203
Class LE (1) $16,832,300
Class LF (1) $56,107,669
Class LG (1) $8,416,150
Class LH (1) $22,443,067
Class LJ (1) $2,805,383
Class LK (1) $28,053,840
- ---------------------------------
(1) The REMIC I Remittance Rate for each Class of REMIC I Regular Interests is
the Weighted Average Adjusted Net Mortgage Rate.
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 as of the Second Sequel Closing Date:
REMIC II
Uncertificated
Regular Interest REMIC II Initial
Designation Remittance Rate Uncertificated
Principal
Balance
----------- --------------- --------------
Class MA-1 (1) $117,428,689
Class MA-2 (1) $49,633,396
Class MA-3 (1) $61,860,297
Class MA-4 (1) $250,372,639
Class MA-5 (1) $114,901,548
Class MA-1C (1) $97,414,278
Class MA-2C (1) $120,594,464
Class MB (1) $56,107,669
Class MX (2) (3)
- ---------------------------------
(1) The REMIC II Remittance Rate for each Class of REMIC II 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 following table sets forth the designation, the initial
Uncertificated Principal Balances and per annum rate of interest for the REMIC
III Uncertificated Regular Interest as of the Second Sequel Closing Date:
REMIC III Uncertificated Initial Uncertificated
Regular Interest REMIC III Remittance Rate Principal Balance
Designation
---------------- ------------------------- -----------------
Class UX (1) (2)
- ---------------------------------
(1) The Pass-Through Rate for the Class UX Uncertificated Regular Interest is
the Class UX Pass-Through Rate.
(2) The Class UX Uncertificated Regular Interest will not have an
Uncertificated Principal Balance; rather, such Class of REMIC III
Uncertificated Regular Interest will receive interest as provided herein
on the Class UX Notional Amount.
The following table sets forth the designation, the initial
Uncertificated Principal Balances and per annum rates of interest for the REMIC
IIIU Uncertificated Regular Interests as of the Second Sequel Closing Date:
REMIC IIIU
Regular Interest REMIC III Remittance Initial Uncertificated
Designation Rate Principal Balance
---------------- ------------------------- ----------------------
Class UA-2 (1) $84,648,789
Class UA-3 (1) $232,000,439
Class UA-4 (1) $110,485,256
Class UA-1C (1) $103,960,279
Class UA-2C (1) $114,048,463
- ---------------------------------
(1) The REMIC IIIU Remittance Rate for each Class of REMIC IIIU Uncertificated
Regular Interests is the Weighted Average Adjusted Net Mortgage Rate.
The Class R-I, Class R-II, Class R-III, Class R-IIIU and Class R-IV
Certificates will be Residual Certificates bearing no Pass-Through Rate and
having no initial Certificate Principal Balances.
In consideration of the mutual agreements herein contained, the
Depositor, the Mortgage Loan Seller, the Master Servicer, the Special Servicer,
the Trustee and the REMIC Administrator agree as follows:
<PAGE>
ARTICLE I
DEFINITIONS; CERTAIN CALCULATIONS IN RESPECT OF THE MORTGAGE
POOL AND THE CERTIFICATES
SECTION 1.01 Defined Terms
Whenever used in this Agreement, including in the Preliminary
Statement, the following words and phrases, unless the context otherwise
requires, shall have the meanings specified in this Article.
"30/360 Basis": As defined in clause (iii) of the definition of
"Mortgage Loan Schedule".
"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.
"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 or REO 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; provided, however, that
the months of December (other than the month of December in a year preceding a
leap year), January and February shall be treated as having 30 days.
"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 (or any Sub-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,
REMIC III, REMIC IIIU and REMIC IV, 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.
"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 (i) 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 Special Servicer, 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, and (ii) as of each Determination Date thereafter)
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 time 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 Documents": With respect to any Mortgage Loan, any of
the following:
(i) the documents identified in clause (iii) of the definition of
Mortgage File, together with any intervening assignments from the
originator to the most recent assignee prior to the Trustee;
(ii) the documents identified in clause (v) of the definition of
Mortgage File, together with any intervening assignments from the
originator to the most recent assignee prior to the Trustee;
(iii) any UCC-2 or UCC-3 filing identified in clause (xi) of the
definition of Mortgage File, including any intervening UCC-2 or UCC-3 from
each assignee of record prior to the Trustee; or
(iv) an original assignment of any related Security Agreement (if
such item is a document separate from the related 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 the
related Mortgage referred to in clause (iii) of the definition of Mortgage
File.
"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, and any payments made by the Master
Servicer to cover Prepayment Interest Shortfalls incurred during the related
Collection Period, any interest or other income earned on funds in (and
subsequently posted to) the Interest Reserve Account and, for the Distribution
Date occurring in each March, the related Withheld Amounts remitted to the
Certificate Account pursuant to Section 4.05, 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), (v) any amounts deposited in the
Distribution Account in error, and (vi) with respect to each Mortgage Loan which
accrues interest on an Actual/360 Basis and any Distribution Date relating to
the one month period preceding the Distribution Date in each February (and in
any January of a year which is not a leap year), an amount equal to the related
Withheld Amount pursuant to Section 4.05; provided that the Available
Distribution Amount for the Final Distribution Date shall be calculated without
regard to clauses (b)(i), (b)(ii) and (b)(vi) of this definition.
"Balloon Mortgage Loan": Any Mortgage Loan that by its original
terms or by virtue of any modification entered into as of the 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.
"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 10, 1999,
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 1999-2 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 "ORIX Real
Estate Capital Markets, LLC, as Master Servicer, in trust for the registered
holders of NationsLink Funding Corporation, Commercial Mortgage Pass-Through
Certificates, Series 1999-2, 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 Master Servicer, the Special Servicer, the REMIC Administrator
or the Trustee or any Affiliate of any of them shall be deemed not to be
outstanding, and the Voting Rights to which any of them is entitled shall not be
taken into account in determining whether the requisite percentage of Voting
Rights necessary to effect any such consent, approval or waiver has been
obtained, except as otherwise provided in Sections 7.04 and 11.01 or except in
connection with the Controlling Class exercising its rights under Section 3.23,
or unless such Persons collectively own an entire Class of Certificates and only
the Holders of such Class of Certificates are entitled to grant such consent,
approval or waiver. The Certificate Registrar shall be entitled to request and
rely upon a certificate of the Depositor, the Mortgage Loan Seller, the Master
Servicer, the Special Servicer or, if other than the Trustee, the REMIC
Administrator, as the case may be, in determining whether or not 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, Class A-2, Class
A-3, Class A-4, Class A-1C or Class A-2C 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 Pass-Through Rate": With respect to any Distribution Date
after the First Sequel Closing Date, a per annum rate equal to 6.478%.
"Class A-1C Certificate": Any one of the Certificates with a "Class
A-1C" designation on the face thereof, substantially in the form of Exhibit A-5
attached hereto, and evidencing a "regular interest" in REMIC IV for purposes of
the REMIC Provisions.
"Class A-1C Pass-Through Rate": A per annum rate equal to 7.0300%.
"Class A-2C Certificate": Any one of the Certificates with a "Class
A-2C" designation on the face thereof, substantially in the form of Exhibit A-6
attached hereto, and evidencing a "regular interest" in REMIC IV for purposes of
the REMIC Provisions.
"Class A-2C Pass-Through Rate": A per annum rate equal to 7.2290%;
provided however, that the Class A-2 Pass-Through Rate shall not exceed the
Weighted Average Adjusted Net Mortgage Rate for the related Distribution Date.
"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 IV for purposes of
the REMIC Provisions.
"Class A-2 Pass-Through Rate": A per annum rate equal to 6.846%.
"Class A-3 Certificate": Any one of the Certificates with a "Class
A-3" designation on the face thereof, substantially in the form of Exhibit A-3
attached hereto, and evidencing a "regular interest" in REMIC IV for purposes of
the REMIC Provisions.
"Class A-3 Pass-Through Rate": A per annum rate equal to 7.1810%;
provided, however, that the Class A-3 Pass-Through Rate shall not exceed the
Weighted Average Adjusted Net Mortgage Rate for the related Distribution Date.
"Class A-4 Certificate": Any one of the Certificates with a "Class
A-4" designation on the face thereof, substantially in the form of Exhibit A-4
attached hereto, and evidencing a "regular interest" in REMIC IV for purposes of
the REMIC Provisions.
"Class A-4 Pass-Through Rate": A per annum rate equal to 7.2940%;
provided, however, that the Class A-4 Pass-Through Rate shall not exceed the
Weighted Average Adjusted Net Mortgage Rate for the related Distribution Date.
"Class B Certificate": Any one of the Certificates with a "Class B"
designation on the face thereof, substantially in the form of Exhibit A-8
attached hereto, and evidencing a "regular interest" in REMIC IV for purposes of
the REMIC Provisions.
"Class B Pass-Through Rate": A per annum rate equal to 7.5320%;
provided, however, that the Class B Pass-Through Rate shall not exceed the
Weighted Average Adjusted Net Mortgage Rate for the related Distribution Date.
"Class C 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 Uncertificated Principal Balance of the Class LC
Uncertificated Interest, which corresponds to the Certificate Principal Balance
of the Class C Certificates.
"Class C Component Pass-Through Rate": A per annum rate equal to the
Weighted Average Adjusted Net Mortgage Rate minus the Class C Pass-Through Rate.
For the avoidance of doubt, the Class C Component Pass-Through Rate is zero.
"Class C Certificate": Any one of the Certificates with a "Class C"
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 C Pass-Through Rate": A per annum rate equal to the Weighted
Average Adjusted Net Mortgage 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-10
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class D 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 Uncertificated Principal Balance of the Class LD
Uncertificated Interest, which corresponds to the Certificate Principal Balance
of the Class D Certificates.
"Class D Component Pass-Through Rate": A per annum rate equal to the
Weighted Average Adjusted Net Mortgage Rate minus the Class D Pass-Through Rate.
For the avoidance of doubt, the Class D Component Pass-Through Rate is zero.
"Class D Pass-Through Rate": A per annum rate equal to the Weighted
Average Adjusted Net Mortgage 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-11
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class E 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 Uncertificated Principal Balance of the Class LE
Uncertificated Interest, which corresponds to the Certificate Principal Balance
of the Class E Certificates.
"Class E Component Pass-Through Rate": A per annum rate equal to the
Weighted Average Adjusted Net Mortgage Rate minus the Class E Pass-Through Rate.
"Class E Pass-Through Rate": A per annum rate equal to 6.32%.
"Class F Certificate": Any one of the Certificates with a "Class F"
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 F 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 Uncertificated Principal Balance of the Class LF
Uncertificated Interest, which corresponds to the Certificate Principal Balance
of the Class F Certificates.
"Class F Component Pass-Through Rate": A per annum rate equal to the
Weighted Average Adjusted Net Mortgage Rate minus the Class F Pass-Through Rate.
"Class F Pass-Through Rate": A per annum rate equal to 5.00%.
"Class G Certificate": Any one of the Certificates with a "Class G"
designation on the face thereof, substantially in the form of Exhibit A-13
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class G 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 Uncertificated Principal Balance of the Class LG
Uncertificated Interest, which corresponds to the Certificate Principal Balance
of the Class G Certificates.
"Class G 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 Pass-Through Rate": A per annum rate equal to 5.00%.
"Class H Certificate": Any one of the Certificates with a "Class H"
designation on the face thereof, substantially in the form of Exhibit A-14
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class H 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 Uncertificated Principal Balance of the Class LH
Uncertificated Interest, which corresponds to the Certificate Principal Balance
of the Class H Certificates.
"Class H 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 Pass-Through Rate": A per annum rate equal to 6.00%.
"Class J Certificate": Any one of the Certificates with a "Class J"
designation on the face thereof, substantially in the form of Exhibit A-15
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class J 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 Uncertificated Principal Balance of the Class LJ
Uncertificated Interest, which corresponds to the Certificate Principal Balance
of the Class J Certificates.
"Class J 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 Pass-Through Rate": A per annum rate equal to 6.00%.
"Class K Certificate": Any one of the Certificates with a "Class K"
designation on the face thereof, substantially in the form of Exhibit A-16
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class K 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 Uncertificated Principal Balance of the Class LK
Uncertificated Interest, which corresponds to the Certificate Principal Balance
of the Class K Certificates.
"Class K 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 Pass-Through Rate": A per annum rate equal to 6.00%.
"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 LA-3 Uncertificated Interest": A regular interest in REMIC I
which is held as an asset of REMIC II and having the initial Uncertificated
Principal Balance and per annum rate of interest set forth in the Preliminary
Statement hereto.
"Class LA-4 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-5 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-1C 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-2C 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 Component": With respect to any date of determination
related to a Distribution Date after the First Sequel Closing Date, that portion
of the Class UX Notional amount equal to the Uncertificated Principal Balance of
the Class MA-1 Uncertificated Interest.
"Class MA-1 Component Pass-Through Rate": With respect to any date
of determination after the First Sequel Closing Date, a per annum rate equal to
the Weighted Average Adjusted Net Mortgage Rate minus the Class A-1 Pass-Through
Rate.
"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 Component": With respect to any date of determination
related to a Distribution Date after the First Sequel Closing Date, with respect
to the Class MA-2 Uncertificated Interest, that portion of Class UX Notional
Amount equal to the Uncertificated Principal Balance of the Class MA-2
Uncertificated Interest.
"Class MA-2 Component Pass-Through Rate": With respect to any date
of determination after the First Sequel Closing Date, a per annum rate equal to
the Weighted Average Adjusted Net Mortgage Rate minus the Class A-1 Pass-Through
Rate.
"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 MA-3 Uncertificated Interest": A regular interest in REMIC II
which is held as an asset of REMIC IIIU and having the initial Uncertificated
Principal Balance and per annum rate of interest set forth in the Preliminary
Statement hereto.
"Class MA-4 Uncertificated Interest": A regular interest in REMIC II
which is held as an asset of REMIC IIIU and having the initial Uncertificated
Principal Balance and per annum rate of interest set forth in the Preliminary
Statement hereto.
"Class MA-5 Uncertificated Interest": A regular interest in REMIC II
which is held as an asset of REMIC IIIU and having the initial Uncertificated
Principal Balance and per annum rate of interest set forth in the Preliminary
Statement hereto.
"Class MA-1C Uncertificated Interest": A regular interest in REMIC
II which is held as an asset of REMIC IIIU and having the initial Uncertificated
Principal Balance and per annum rate of interest set forth in the Preliminary
Statement hereto.
"Class MA-2C Uncertificated Interest": A regular interest in REMIC
II which is held as an asset of REMIC IIIU and having the initial Uncertificated
Principal Balance and per annum rate of interest set forth in the Preliminary
Statement hereto.
"Class MB Component": With respect to any date of determination
related to a Distribution Date after the Second Sequel Closing Date, with
respect to the Class MB Uncertificated Interest, that portion of Class X
Notional Amount equal to the Uncertificated Principal Balance of the Class MB
Uncertificated Interest.
"Class MB Component Pass-Through Rate": With respect to any date of
determination after the Second Sequel Closing Date, a per annum rate equal to
the Weighted Average Adjusted Net Mortgage Rate minus the Class B Pass-Through
Rate.
"Class MB Uncertificated Interest": A regular interest in REMIC II
which is held as an asset of REMIC IV and having the initial Uncertificated
Principal Balance and per annum rate of interest set forth in the Preliminary
Statement hereto.
"Class MX Notional Amount": With respect to any Distribution Date
after the First Sequel Closing Date, 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 Uncertificated
Principal Balances of the Class LC, Class LD, Class LE, Class LF, Class LG,
Class LH, Class LJ and Class LK Uncertificated Interests which correspond to the
Certificate Principal Balances of the Class C, Class D, Class E, Class F, 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).
"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 C Component, the Class D
Component, the Class E Component, the Class F Component, the Class G Component,
the Class H Component, the Class J Component and the Class K 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 UX 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 Original Class Principal
Balance. On the First Sequel Closing Date, the certificates that had been
designated "Class A-1" and "Class A-2" under the Original Pooling Agreement were
exchanged for the Class A-1 Certificates. The Class Principal Balance of the
Class A-1 Certificates as of the Second Sequel Closing Date shall equal the
Initial Class Principal Balance thereof. As of the Second Sequel Closing Date,
the Certificates that had been designated "Class A-3", "Class A-4" and "Class
A-5" under the Original Pooling Agreement shall be redesignated the Class A-2,
Class A-3 and Class A-4 Certificates, and the Class A-1C, Class A-2C and Class B
Certificates are reissued as of the Second Sequel Closing Date, and the Class
Principal Balance of each such Class of Certificates shall equal the Initial
Class Principal Balance thereof. On each Distribution Date, the Class Principal
Balance of each Class of the Sequential Pay Certificates shall be permanently
reduced by the amount of any distributions of principal made thereon on such
Distribution Date pursuant to Section 4.01(b) and, if and to the extent
appropriate, shall be further permanently reduced on such Distribution Date as
provided in Section 4.04(a).
"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-17
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-18
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-19 attached hereto, and evidencing the sole Class of "residual interest" in
REMIC III for purposes of the REMIC Provisions.
"Class R-IIIU Certificate": Any one of the Certificates with a
"Class R-IIIU" designation on the face thereof, substantially in the form of
Exhibit A-20 attached hereto, and evidencing the sole Class of "residual
interest" in REMIC IIIU for purposes of the REMIC Provisions.
"Class R-IV Certificate": Any one of the Certificates with a "Class
R-IV" designation on the face thereof, substantially in the form of Exhibit A-21
attached hereto, and evidencing the sole Class of "residual interest" in REMIC
IV for purposes of the REMIC Provisions.
"Class UA-2 Component": With respect to any date of determination
related to a Distribution Date after the Second Sequel Closing Date, with
respect to the Class UA-2 Uncertificated Interest, that portion of the Class X
Notional Amount equal to the Uncertificated Principal Balance of the Class UA-2
Uncertificated Interest.
"Class UA-2 Component Pass-Through Rate": With respect to any date
of determination after the Second Sequel Closing Date, a per annum rate equal to
the Weighted Average Net Mortgage Rate minus the Class A-2 Pass-Through Rate.
"Class UA-2 Uncertificated Interest": A regular interest in REMIC
IIIU which is held as an asset of REMIC IV and having the initial Uncertificated
Principal Balance and per annum rate of interest set forth in the Preliminary
Statement hereto.
"Class UA-3 Component": With respect to any date of determination
related to a Distribution Date after the Second Sequel Closing Date, with
respect to the Class UA-3 Uncertificated Interest, that portion of the Class X
Notional Amount equal to the Uncertificated Principal Balance of the Class UA-3
Uncertificated Interest.
"Class UA-3 Component Pass-Through Rate": With respect to any date
of determination after the Second Sequel Closing Date, a per annum rate equal to
the Weighted Average Net Mortgage Rate minus the Class A-3 Pass-Through Rate.
"Class UA-3 Uncertificated Interest": A regular interest in REMIC
IIIU which is held as an asset of REMIC IV and having the initial Uncertificated
Principal Balance and per annum rate of interest set forth in the Preliminary
Statement hereto.
"Class UA-4 Component": With respect to any date of determination
related to a Distribution Date after the Second Sequel Closing Date, with
respect to the Class UA-4 Uncertificated Interest, that portion of the Class X
Notional Amount equal to the Uncertificated Principal Balance of the Class UA-4
Uncertificated Interest.
"Class UA-4 Component Pass-Through Rate": With respect to any date
of determination after the Second Sequel Closing Date, a per annum rate equal to
the Weighted Average Net Mortgage Rate minus the Class A-4 Pass-Through Rate.
"Class UA-4 Uncertificated Interest": A regular interest in REMIC
IIIU which is held as an asset of REMIC IV and having the initial Uncertificated
Principal Balance and per annum rate of interest set forth in the Preliminary
Statement hereto.
"Class UA-1C Component": With respect to any date of determination
related to a Distribution Date after the Second Sequel Closing Date, with
respect to the Class UA-1C Uncertificated Interest, that portion of the Class X
Notional Amount equal to the Uncertificated Principal Balance of the Class UA-1C
Uncertificated Interest.
"Class UA-1C Component Pass-Through Rate": With respect to any date
of determination after the Second Sequel Closing Date, a per annum rate equal to
the Weighted Average Net Mortgage Rate minus the Class A-1C Pass-Through Rate.
"Class UA-1C Uncertificated Interest": A regular interest in REMIC
IIIU which is held as an asset of REMIC IV and having the initial Uncertificated
Principal Balance and per annum rate of interest set forth in the Preliminary
Statement hereto.
"Class UA-2C Component": With respect to any date of determination
related to a Distribution Date after the Second Sequel Closing Date, with
respect to the Class UA-2C Uncertificated Interest, that portion of the Class X
Notional Amount equal to the Uncertificated Principal Balance of the Class UA-2C
Uncertificated Interest.
"Class UA-2C Component Pass-Through Rate": With respect to any date
of determination after the Second Sequel Closing Date, a per annum rate equal to
the Weighted Average Net Mortgage Rate minus the Class A-2C Pass-Through Rate.
"Class UA-2C Uncertificated Interest": A regular interest in REMIC
IIIU which is held as an asset of REMIC IV and having the initial Uncertificated
Principal Balance and per annum rate of interest set forth in the Preliminary
Statement hereto.
"Class UX Notional Amount": With respect to any Distribution Date
after the Second Sequel Closing Date, the aggregate hypothetical or notional
principal balance on which the Class UX Uncertificated Interest collectively
accrues interest, which amount is equal to the aggregate of the Uncertificated
Principal Balances of the Class MA-1 and Class MA-2 Uncertificated Interests and
(ii) the Class MX Notional Amount, in each case as of the preceding Distribution
Date (after giving effect to the distribution of principal on such Distribution
Date).
"Class UX Pass-Through Rate": With respect to any Distribution Date,
after the Second Sequel Closing Date, a rate per annum, rounded to eight decimal
places, equal to the weighted average of the Component Pass-Through Rates on the
Class MA-1 Component and the Class MA-2 Component and the Class MX Pass-Through
Rate, weighted on the basis of their respective portions of the Class MX
Notional Amount.
"Class UX Uncertificated Interest": A regular interest in REMIC III
which is held as an asset of REMIC IV and having an initial Class Notional
Amount equal to the Class UX Notional Amount and a per annum rate of interest
equal to the Class UX Pass-Through Rate.
"Class X Certificate": Any one of the Certificates with a "Class X"
designation on the face thereof, substantially in the form of Exhibit A-7, and
evidencing a "regular interest" in REMIC IV for purposes of the REMIC
Provisions.
"Class X Notional Amount": With respect to any Distribution Date
after the Second Sequel Closing Date, the aggregate hypothetical or notional
principal amount on which the Class X Certificates collectively accrue interest,
which amount is equal to the aggregate of the (i) Uncertificated Principal
Balances of the Class UA-2, Class UA-3, Class UA-4, Class UA-1C, Class UA-2C and
Class MB Uncertificated Interests and (ii) the Class UX Notional Amount, in each
case as of the preceding Distribution Date (after giving effect to the
distribution of principal on such Distribution Date).
"Class X Pass-Through Rate": With respect to any Distribution Date
after the Second Sequel Closing Date, a rate per annum, rounded to eight decimal
places, equal to the weighted average of the Component Pass-Through Rates on the
Class UA-2 Component, the Class UA-3 Component, the Class UA-4 Component, the
Class UA-1C Component, the Class UA-2C Component, the Class MB Component and the
Class UX Pass-Through Rate, weighted on the basis of their respective portions
of the Class X Notional Amount or the Class UX 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": With respect to a Distribution Date after the Second
Sequel Closing Date, any of the Class MA-1 Component, Class MA-2 Component,
Class MB Component, Class UA-2 Component, Class UA-3 Component, Class UA-4
Component, Class UA-1C Component, Class UA-2C 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": With respect to a Distribution Date
after the Second Sequel Closing Date, any of the Class MA-1 Component
Pass-Through Rate, Class MA-2 Component Pass-Through Rate, Class MB Component
Pass-Through Rate, Class UA-2 Component Pass-Through Rate, Class UA-3 Component
Pass-Through Rate, Class UA-4 Component Pass-Through Rate, Class UA-1C Component
Pass-Through Rate, Class UA-2C Component Pass-Through Rate, Class C Component
Pass-Through Rate, Class D Component Pass-Through Rate, Class E Component
Pass-Through Rate, Class F Component Pass-Through Rate, Class G Component
Pass-Through Rate, Class H Component Pass-Through Rate, Class J Component
Pass-Through Rate and the Class K 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, for purposes of Certificate transfer services, at the date of the
execution of this Agreement is located at Norwest Center, Sixth and Marquette,
Minneapolis, Minnesota 55479-0113, Attention: Corporate Trust Services (CMBS) -
Nationslink Funding Corporation Commercial Mortgage Pass-Through Certificates,
Series 1999-2 and for all other purpose, at the date of the execution of this
Agreement is located at 11000 Broken Land Parkway, Columbia, Maryland
21044-3562, Attention: Corporate Trust Services (CMBS) - Nationslink Funding
Corporation Commercial Mortgage Pass-Through Certificates, Series 1999-2.
"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 IIIU
Uncertificated Regular Interest," "Corresponding REMIC II Uncertificated Regular
Interest" and "Corresponding REMIC I Regular Interest": The related Classes of
REMIC I Regular Interests, REMIC II Uncertificated Regular Interests, REMIC IIIU
Uncertificated Regular Interests and the Certificates set forth below:
<TABLE>
<CAPTION>
Corresponding REMIC I Corresponding REMIC Corresponding
Regular Interest II Uncertificated REMIC IIIU Corresponding
Regular Interest Uncertificated Certificate
Regular Interest
- --------------------- -------------------- ---------------- --------------
<S> <C> <C> <C>
Class LA-1 Class MA-1 Class A-1 Certificate
Uncertificated Uncertificated
Interest Interest
Class LA-2 Class MA-2 Class A-1 Certificate
Uncertificated Uncertificated
Interest Interest
Class LA-3 Class MA-3 Class UA-2 Class A-2 Certificate
Uncertificated Uncertificated Uncertificated
Interest Interest Interest
Class LA-4 Class MA-4 Class UA-3 Class A-3 Certificate
Uncertificated Uncertificated Uncertificated
Interest Interest Interest
Class LA-5 Class MA-5 Class UA-4 Class A-4 Certificate
Uncertificated Uncertificated Uncertificated
Interest Interest Interest
Class LA-1C Class MA-1C Class UA-1C Class A-1C
Uncertificated Uncertificated Uncertificated Certificate
Interest Interest Interest
Class LA-2C Class MA-2C Class UA-2C Class A-2C
Uncertificated Uncertificated Uncertificated Certificate
Interest Interest Interest
Class LB Class MB Class B Certificate
Uncertificated Uncertificated
Interest Interest
Class LC Class C Certificate
Uncertificated
Interest
Class LD Class D Certificate
Uncertificated
Interest
Class LE Class E Certificate
Uncertificated
Interest
Class LF Class F Certificate
Uncertificated
Interest
Class LG Class G Certificate
Uncertificated
Interest
Class LH Class H Certificate
Uncertificated
Interest
Class LJ Class J Certificate
Uncertificated
Interest
Class LK Class K Certificate
Uncertificated
Interest
</TABLE>
"CPR": As defined in the Base Prospectus.
"CMSA": The Commercial Real Estate Secondary Market and
Securitization Association.
"CMSA Loan Periodic Update File": As defined in Section 4.02(b).
"Cross-Collateralized Mortgage Loan": Any Mortgage Loan that is
cross-collateralized and cross-defaulted with one or more other Mortgage Loans.
"Current Principal Distribution Amount": With respect to any
Distribution Date, an amount (calculated in accordance with Section 1.02) equal
to the aggregate of, without duplication:
(a) the principal portions of all Monthly Payments (other than
Balloon Payments) and any Assumed Monthly Payments due or deemed due, as the
case may be, in respect of the Mortgage Loans and any REO Loans for their
respective Due Dates occurring during the related Collection Period;
(b) all Principal Prepayments received on the Mortgage Loans during
the related Collection Period;
(c) with respect to any Balloon Mortgage Loan as to which the
related Stated Maturity Date occurred during or prior to the related Collection
Period, any payment of principal (exclusive of any Principal Prepayment and any
amount described in subclause (d) below) that was made by or on behalf of the
related Mortgagor during the related Collection Period, net of any portion of
such payment that represents a recovery of the principal portion of any Monthly
Payment (other than a Balloon Payment) due, or the principal portion of any
Assumed Monthly Payment deemed due, in respect of such Balloon Mortgage Loan on
a Due Date during or prior to the related Collection Period and not previously
recovered;
(d) all Liquidation Proceeds (net of Liquidation Expenses) and
Insurance Proceeds received on or in respect of the Mortgage Loans during the
related Collection Period that were identified and applied by the Master
Servicer as recoveries of principal thereof, in each case net of any portion of
such amounts that represents a recovery of the principal portion of any Monthly
Payment (other than a Balloon Payment) due, or of the principal portion of any
Assumed Monthly Payment deemed due, in respect of any such Mortgage Loan on a
Due Date during or prior to the related Collection Period and not previously
recovered; and
(e) all Liquidation Proceeds (net of Liquidation Expenses),
Insurance Proceeds and REO Revenues received on or in respect of any REO
Properties during the related Collection Period that were identified and applied
by the Master Servicer as recoveries of principal of the related REO Loans, in
each case net of any portion of such amounts that represents a recovery of the
principal portion of any Monthly Payment (other than a Balloon Payment) due, or
of the principal portion of any Assumed Monthly Payment deemed due, in respect
of any such REO Loan or the predecessor Mortgage Loan on a Due Date during or
prior to the related Collection Period and not previously recovered.
"Custodian": A Person who is at any time appointed by the Trustee
pursuant to Section 8.11 as a document custodian for the Mortgage Files, which
Person shall not be the Depositor, the Mortgage Loan Seller or an Affiliate of
either.
"Cut-off Date": August 1, 1999.
"Cut-off Date Balance": With respect to any Mortgage Loan, the
outstanding principal balance of such Mortgage Loan as of the Cut-off Date, net
of all unpaid payments of principal due in respect thereof on or before such
date.
"DCR": Duff & Phelps Credit Rating Co. or its successor in interest.
If neither such rating agency nor any successor remains in existence, "DCR"
shall be deemed to refer to such other nationally recognized statistical rating
agency or other comparable Person designated by the Depositor, notice of which
designation shall be given to the Trustee, the Master Servicer, the Special
Servicer and the REMIC Administrator, and specific ratings of Duff & Phelps
Credit Rating Co. herein referenced shall be deemed to refer to the equivalent
ratings of the party so designated.
"DCR Review Threshold": As defined in Section 3.26(j).
"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
Cash Flow (before payment of any debt service on such Mortgage Loan) generated
by the related Mortgaged Property during the most recently ended twelve month
period 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 the Special Servicer (following the
Original Closing Date), 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
the number of months represented in the financial statements.
"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).
"Defaulting Party": As defined in Section 7.01(b).
"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 Determination Date for
the related Distribution Date] were (i) delinquent 30-59 days, (ii) delinquent
60-89 days, (iii) delinquent 90 days or more, (iv) current but specially
serviced, or (v) in foreclosure but as to which the related Mortgaged Property
had not become REO Property.
"Delivery Date": On or about August 17, 1999.
"Denomination": As defined in Section 5.01(a).
"Depositor": NationsLink Funding Corporation, or its successor in
interest.
"Depository": The Depository Trust Company, or any successor
Depository hereafter named. The nominee of the initial Depository for purposes
of registering those Certificates that are to be Book-Entry Certificates, is
Cede & Co. The Depository shall at all times be a "clearing corporation" as
defined in Section 8-102(3) of the Uniform Commercial Code of the State of New
York and a "clearing agency" registered pursuant to the provisions of Section
17A of the Exchange Act.
"Depository Participant": A broker, dealer, bank or other financial
institution or other Person for whom from time to time the Depository effects
book-entry transfers and pledges of securities deposited with the Depository.
"Depository Rules": As defined in Section 5.02(b).
"Determination Date": With respect to any Distribution Date, the
10th day of the month in which such Distribution Date occurs, or if such 10th
day is not a Business Day, the next succeeding Business Day.
"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 Principal 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, Class R-III, Class R-IIIU or Class R-IV 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, Class R-III, Class R-IIIU or Class R-IV 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 successor form) 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, Class R-III, Class R-IIIU or Class R-IV 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, Class R-III, Class R-IIIU or
Class R-IV 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 first, to the
Class K, Class J, Class H, Class G, Class F, Class E, Class D, Class C and Class
B Certificates, in that order, in each case up to an amount equal to the lesser
of any remaining unallocated portion of such Net Aggregate Prepayment Interest
Shortfall and any Accrued Certificate Interest in respect of the particular
Class of Certificates for such Distribution Date; and, thereafter, if and to the
extent that any portion of such Net Aggregate Prepayment Interest Shortfall
remains unallocated, pro rata among the Class A-1, Class A-2, Class A-3, Class
A-4, Class A-1C, Class A-2C and Class X Certificates, in accordance with the
respective amounts of Accrued Certificate Interest for each such 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
1999-2, 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
September, 1999.
"Distribution Date Statement": As defined in Section 4.02(a).
"Document Defect": As defined in Section 2.02(e).
"DTC": As defined in Section 5.03(d).
"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 "AA" by
Fitch, "A" by DCR (if rated by DCR) 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 "F-1+" by Fitch, "D-1" by DCR (if
rated by DCR) 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 (if applicable) 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 5 Business 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.
"Environmental Policy": The environmental policy issued by Steadfast
Insurance Company in the form attached hereto as Exhibit N and naming as
insureds the Trustee and the Mortgage Loan Seller.
"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 Bank of America Corporation), (ii) any Person
directly or indirectly, through one or more intermediaries, controlling,
controlled by or under common control with Bank of America Corporation and (iii)
any member of a syndicate or selling group of which Bank of America 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 an Affiliate
thereof pursuant to Section 2.03, by the Majority Certificateholder of the
Controlling Class pursuant to Section 3.18(b), by the Master Servicer or the
Special Servicer pursuant to Section 3.18(c) or by the Master Servicer or the
Majority Certificateholder of the Controlling Class pursuant to Section 9.01)
that there has been a recovery of all Insurance Proceeds, Liquidation Proceeds
and other payments or recoveries (including, without limitation, by reason of a
sale of such Mortgage Loan or REO Property pursuant to Section 3.18(d) hereof)
that the Special Servicer has determined, in accordance with the Servicing
Standard, exercised without regard to any obligation of the Master Servicer or
Special Servicer to make payments from its own funds pursuant to Section
3.07(b), will be ultimately recoverable.
"First Sequel Closing Date": October 14, 1999.
"Fitch": Fitch IBCA, Inc. or its successor in interest. If neither
such rating agency nor any successor remains in existence, "Fitch" shall be
deemed to refer to such other nationally recognized statistical rating agency or
other comparable Person designated by the Sponsor, notice of which designation
shall be given to the Trustee, Master Servicer, Special Servicer and the REMIC
Administrator and specific ratings of Fitch IBCA, Inc. herein referenced shall
be deemed to refer to the equivalent ratings of the party so designated.
"Freddie Mac": The Federal Home Loan Mortgage Corporation or any
successor.
"Ground Lease": The ground lease pursuant to which any Mortgagor
holds a leasehold interest in the related Mortgaged Property 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 Estimate 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 basis.
"HUD-Approved Servicer": A servicer that is a mortgagee approved by
the Secretary of Housing and Urban Development pursuant to Sections 207 and 211
of the National Housing Act.
"Independent": When used with respect to any specified Person, any
such Person who (i) is in fact independent of the Depositor, the Mortgage Loan
Seller, the Master Servicer, the Special Servicer, the Trustee, the REMIC
Administrator and any and all Affiliates thereof, (ii) does not have any direct
financial interest in or any material indirect financial interest in any of the
Depositor, the Mortgage Loan Seller, the Master Servicer, the Special Servicer,
the Trustee, the REMIC Administrator or any Affiliate thereof, and (iii) is not
connected with the Depositor, the Mortgage Loan Seller, the Master Servicer, the
Special Servicer, the Trustee, the REMIC Administrator or any Affiliate thereof
as an officer, employee, promoter, underwriter, trustee, partner, director or
Person performing similar functions; provided, however, that a Person shall not
fail to be Independent of the Depositor, the Mortgage Loan Seller, the Master
Servicer, the Special Servicer, the Trustee, the REMIC Administrator or any
Affiliate thereof merely because such Person is the beneficial owner of 1% or
less of any Class of securities issued by the Depositor, the Mortgage Loan
Seller, the Master Servicer, the Special Servicer, the Trustee, the REMIC
Administrator or any Affiliate thereof, as the case may be.
"Independent Contractor": Any Person that would be an "independent
contractor" with respect to REMIC I within the meaning of Section 856(d)(3) of
the Code if REMIC I were a real estate investment trust (except that the
ownership test set forth in that section shall be considered to be met by (i)
any Person that owns, directly or indirectly, 35 percent or more of any Class of
Certificates, or such other interest in any Class of Certificates as is set
forth in an Opinion of Counsel, which shall not be an expense of the Trustee,
the REMIC Administrator or the Trust, delivered to the Trustee and the REMIC
Administrator), so long as REMIC I does not receive or derive any income from
such Person and provided that the relationship between such Person and REMIC I
is at arm's length, all within the meaning of Treasury Regulations Section
1.856-4(b)(5), or (ii) any other Person upon receipt by the Trustee and the
REMIC Administrator of an Opinion of Counsel, which shall be at no expense to
the Trustee, the REMIC Administrator or the Trust, to the effect that the taking
of any action in respect of any REO Property by such Person, subject to any
conditions therein specified, that is otherwise herein contemplated to be taken
by an Independent Contractor will not cause such REO Property to cease to
qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of
the Code, or cause any income realized in respect of such REO Property to fail
to qualify as Rents from Real Property.
"Initial Class Notional Amount": With respect to the Class X
Certificates, the initial Class X Notional Amount thereof as of the Sequel
Closing Date equal to $1,118,401,483.26.
"Initial Class Principal Balance": As defined in the Preliminary
Statement.
"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(b).
"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 Class of 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
1999-2, Interest Reserve Account".
"Interested Person": The Depositor, the Mortgage Loan Seller, the
Master Servicer, any Sub-Servicer, the Special Servicer, any Holder of a
Certificate, or any Affiliate of any such Person.
"Investment Account": As defined in Section 3.06(a).
"Investment Representation Letter": As defined in Section 5.02(b).
"IRS": The Internal Revenue Service or any successor.
"Late Collections": With respect to any Mortgage Loan, all amounts
received thereon during any Collection Period, whether as payments, Insurance
Proceeds, Liquidation Proceeds or otherwise, which represent late collections of
the principal and/or interest portions of a Monthly Payment (other than a
Balloon Payment) or an Assumed Monthly Payment in respect of such Mortgage Loan
due or deemed due, as the case may be, for a Due Date in a previous Collection
Period, or for a Due Date coinciding with or preceding the Cut-off Date, and not
previously received or recovered. With respect to any REO Loan, all amounts
received in connection with the related REO Property during any Collection
Period, whether as Insurance Proceeds, Liquidation Proceeds, REO Revenues or
otherwise, which represent late collections of the principal and/or interest
portions of a Monthly Payment (other than a Balloon Payment) or an Assumed
Monthly Payment in respect of the related Mortgage Loan or of an Assumed Monthly
Payment in respect of such REO Loan due or deemed due, as the case may be, for a
Due Date in a previous Collection Period and not previously received or
recovered. The term "Late Collections" shall specifically exclude any Default
Charges.
"Liquidation Event": With respect to any Mortgage Loan, any of the
following events: (i) such Mortgage Loan is paid in full; (ii) a Final Recovery
Determination is made with respect to such Mortgage Loan; (iii) such Mortgage
Loan is repurchased by the Mortgage Loan Seller or any Affiliate thereof
pursuant to Section 2.03; or (iv) such Mortgage Loan is purchased by the
Majority Certificateholder of the Controlling Class pursuant to Section 3.18(b),
by the Master Servicer or the Special Servicer pursuant to Section 3.18(c), or
by the Master Servicer or the Majority Certificateholder of the Controlling
Class pursuant to Section 9.01. With respect to any REO Property (and the
related REO Loan), any of the following events: (x) a Final Recovery
Determination is made with respect to such REO Property; or (y) such REO
Property is purchased by the Master Servicer or the Majority Certificateholder
of the Controlling Class pursuant to Section 9.01.
"Liquidation Expenses": All customary, reasonable and necessary "out
of pocket" costs and expenses due and owing (but not otherwise covered by
Servicing Advances) in connection with the liquidation of any Specially Serviced
Mortgage Loan or REO Property pursuant to Section 3.09 or 3.18 (including,
without limitation, legal fees and expenses, committee or referee fees and, if
applicable, brokerage commissions and conveyance taxes).
"Liquidation Fee": With respect to each Specially Serviced Mortgage
Loan or REO Property (other than any Specially Serviced Mortgage Loan or REO
Property repurchased (x) by the Mortgage Loan Seller or any Affiliate thereof
pursuant to Section 2.03 within 90 days (or, if applicable, 180 days) of the
Mortgage Loan Seller's notice or discovery of the breach or Document Defect
giving rise to such repurchase obligation, (y) by the Majority Certificateholder
of the Controlling Class, the Master Servicer or the Special Servicer pursuant
to Section 3.18 or (z) by the Master Servicer or the Majority Certificateholder
of the Controlling Class pursuant to Section 9.01), the fee designated as such
and payable to the Special Servicer pursuant to the fourth paragraph of Section
3.11(c).
"Liquidation Fee Rate": With respect to each Specially Serviced
Mortgage Loan or REO Property as to which a Liquidation Fee is payable, 1.0%.
"Liquidation Proceeds": All cash amounts, including REO Revenues,
after deducting related expenses, all partial or unscheduled collections (other
than Insurance Proceeds) received by the Master Servicer or the Special Servicer
in connection with: (i) the taking of all or a part of a Mortgaged Property by
exercise of the power of eminent domain or condemnation; (ii) the liquidation of
a Mortgaged Property or other collateral constituting, or that constituted,
security for a defaulted Mortgage Loan, through trustee's sale, foreclosure
sale, REO Disposition or otherwise, exclusive of any portion thereof required to
be released to the related Mortgagor in accordance with applicable law and the
terms and conditions of the related Mortgage Note and Mortgage; (iii) the
realization upon any deficiency judgment obtained against a Mortgagor or any
guarantor; (iv) the purchase of a Defaulted Mortgage Loan by the Majority
Certificateholder of the Controlling Class pursuant to Section 3.18(b) or by the
Master Servicer or the Special Servicer pursuant to Section 3.18(c) or any other
sale thereof pursuant to Section 3.18(d); (v) the repurchase of a Mortgage Loan
by the Mortgage Loan Seller or any Affiliate thereof pursuant to Section 2.03;
or (vi) the purchase of a Mortgage Loan or REO Property by the Master Servicer
or the Majority Certificateholder of the Controlling Class pursuant to Section
9.01.
"MAI": Member of the Appraisal Institute.
"Majority Certificateholder": With respect to any specified Class or
Classes of Certificates, as of any date of determination, any Holder or
particular group of Holders of Certificates of such Class or Classes, as the
case may be, entitled to a majority of the Voting Rights allocated to such Class
or Classes, as the case may be.
"Master Servicer": ORIX Real Estate Capital Markets, LLC, 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 unscheduled 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 (xvii) 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), a rate per annum that will range from 9.075 basis points
(0.09075% per annum) to 29.075 basis points (0.29075%) per annum, as specified
for such Mortgage Loan in the Mortgage Loan Schedule with an initial weighted
average Master Servicing Fee Rate as of the Original Closing Date of 13.956
basis points (0.13956%) per annum.
"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.
"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 1999-2, without recourse";
(ii) the original or a copy of the Mortgage and, if applicable,
the originals or copies of any intervening assignments thereof showing a
complete chain of assignment from the originator of the Mortgage Loan to the
most recent assignee of record thereof prior to the Trustee, if any, in each
case with evidence of recording indicated thereon;
(iii) an original assignment of the Mortgage, in recordable
form, executed by the most recent assignee of record thereof prior to the
Trustee or, if none, by the originator, in favor of the Trustee (in such
capacity);
(iv) the original or a copy of any related Assignment of Leases
(if any such item is a document separate from the Mortgage) and, if applicable,
the originals or copies of any intervening assignments thereof showing a
complete chain of assignment from the originator of the Mortgage Loan to the
most recent assignee of record thereof prior to the Trustee, if any, in each
case with evidence of recording thereon;
(v) an original assignment of any related Assignment of Leases
(if any such item is a document separate from the Mortgage), in recordable form,
executed by the most recent assignee of record thereof prior to the Trustee or,
if none, by the originator, in favor of the Trustee (in such capacity), which
assignment may be included as part of the corresponding assignment of Mortgage
referred to in clause (iii) above;
(vi) an original or copy of any related Security Agreement (if
such item is a document separate from the Mortgage) and, if applicable, the
originals or copies of any intervening assignments thereof showing a complete
chain of assignment from the originator of the Mortgage Loan to the most recent
assignee of record thereof prior to the Trustee, if any;
(vii) an original assignment of any related Security Agreement
(if such item is a document separate from the Mortgage) executed by the most
recent assignee of record thereof prior to the Trustee or, if none, by the
originator, in favor of the Trustee (in such capacity), which assignment may be
included as part of the corresponding assignment of Mortgage referred to in
clause (iii) above;
(viii) originals or copies of all assumption, modification,
written assurance and substitution agreements, with evidence of recording
thereon if appropriate, in those instances where the terms or provisions of the
Mortgage, Mortgage Note or any related security document have been modified or
the Mortgage Loan has been assumed;
(ix) a title insurance policy or a copy thereof effective as of
the date of the recordation of the Mortgage Loan, together with all endorsements
or riders that were issued with or subsequent to the issuance of such policy,
insuring the priority of the Mortgage as a first lien on the Mortgagor's fee
interest in the Mortgaged Property, or if the policy has not yet been issued, an
original or copy or a written commitment "marked-up" at the closing of such
Mortgage Loan, interim binder or the pro forma title insurance policy evidencing
a binding commitment to issue such policy, dated as of the date on which related
Mortgage Loan was funded;
(x) the original of any guaranty of the obligations of the
Mortgagor under the Mortgage Loan which was in the possession of the Mortgage
Loan Seller at the time the Mortgage Files were delivered to the Trustee;
(xi) (A) file copies of any UCC Financing Statements and
continuation statements which were filed in order to perfect (and maintain the
perfection of) any security interest held by the originator of the Mortgage Loan
(and each assignee of record prior to the Trustee) in and to the personalty of
the Mortgagor at the Mortgaged Property (in each case with evidence of filing
thereon) and which were in the possession of the Mortgage Loan Seller at the
time the Mortgage Files were delivered to the Trustee and (B) if any such
security interest is perfected and the related UCC-1, UCC-2 or UCC-3 financing
statements were in the possession of the Mortgage Loan Seller, an original 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; provided that, if such report is sent directly
to the Master Servicer, the Depositor shall have no duty to provide a copy of
such report to the Trustee;
(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;
(xxi) any additional documents required to be added to the
Mortgage File pursuant to this Agreement; and
(xxii) any environmental policy;
provided that whenever the term "Mortgage File" is used to refer to documents
actually received by the Trustee or a Custodian appointed thereby, such term
shall not be deemed to include such documents and instruments required to be
included therein unless they are actually so received.
"Mortgage Loan": Each of the mortgage loans transferred and assigned
to the Trustee pursuant to Section 2.01 and from time to time held in the Trust
Fund. As used herein, the term "Mortgage Loan" includes the related Mortgage
Note, Mortgage and other security documents contained in the related Mortgage
File.
"Mortgage Loan Purchase and Sale Agreement": The Mortgage Loan
Purchase and Sale Agreement, dated as of August 17, 1999, among Bank of America,
N.A., the NB Owner Trust and the Depositor.
"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, the control number, whether the Mortgage
Loan is a Conduit Loan or a Portfolio Loan and whether the Mortgage Loan is in
Loan Group 1 or Loan Group 2;
(ii) [Reserved]
(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) the discount rate used in accordance with the related
Mortgage Loan documents in calculating the Prepayment Premium with respect to a
Principal Prepayment.
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": Bank of America, N.A., and its successors
and assigns.
"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 Weighted Average Adjusted Net Mortgage Rate with respect to each
Mortgage Loan that accrues interest on an Actual/360 Basis, (i) the Mortgage
Rate for the 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.
"NB Conduit Originator": Each of ARCS Commercial Mortgage Co., L.P.,
a California limited partnership, Bankers Mutual, First Security Bank, N.A.,
L.J. Melody & Company, Patrician Financial Company Limited Partnership and WMF
Washington Mortgage Corp.
"NB Owner Trust": NationsBank Commercial Mortgage Owner Trust I, a
Delaware business trust.
"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 Non-Specially Serviced 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 Cash Flow": With respect to any Mortgaged Property, the total
operating revenues derived from such Mortgaged Property, minus the total fixed
and variable operating expenses, capital expenditures such as reserves, tenant
improvements and leasing commissions, incurred in respect of such Mortgaged
Property (subject to adjustments for, among other things, (i) non-cash items
such as depreciation and amortization, and (ii) debt service on loans secured by
the Mortgaged Property).
"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 REMIC 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.
"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, which judgment shall be supported by an Officer's Certificate as to
the basis for such determination, will not be recoverable (together with Advance
Interest accrued thereon), or which in fact was not ultimately recovered, from
late collections, Insurance Proceeds, Liquidation Proceeds or any other recovery
on or in respect of such Mortgage Loan or REO Property (without giving effect to
potential recoveries on deficiency judgments or recoveries from guarantors).
"Nonrecoverable Servicing Advance": Any Servicing Advance made or
proposed to be made in respect of a Mortgage Loan or REO Property which, as
determined by the Master Servicer, the Special Servicer or, if applicable, the
Trustee, in its reasonable and good faith judgment, will not be recoverable
(together with Advance Interest accrued thereon), or which in fact was not
ultimately recovered, from late collections, Insurance Proceeds, Liquidation
Proceeds or any other recovery on or in respect of such Mortgage Loan or REO
Property (without giving effect to potential recoveries on deficiency judgments
or recoveries from guarantors).
"Non-Registered Certificate": Unless and until registered under the
Securities Act, any Class A-1, Class E, Class F, Class G, Class H, Class J or
Class K Certificate or Residual 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, a Responsible Officer of the
Trustee or any authorized officer of the Mortgage Loan Seller, as the case may
be.
"Operating Statement Analysis Report": As defined in Section
4.02(b).
"Operating Statement Analysis Worksheet": A report prepared by the
Master Servicer or the Special Servicer, as the case may be, substantially
containing the content described in Exhibit M attached hereto, presenting the
computations made in accordance with the methodology described in said Exhibit M
to "normalize" the full year of annual Net Cash Flow and debt service coverage
numbers used in the other reports required by this Agreement, sent to the
Trustee (or, with respect to the Special Servicer, the Master Servicer, which
will consist of the related data elements) with a hard copy of each annual
operating statement for a Mortgaged Property pursuant to Section 4.02(b).
"Opinion of Counsel": A written opinion of counsel (who must, in
connection with any opinion rendered pursuant hereto with respect to tax matters
or a resignation under Section 6.04, be Independent counsel, but who otherwise
may be salaried counsel for the Depositor, the Mortgage Loan Seller, the
Trustee, the REMIC Administrator, the Master Servicer or the Special Servicer),
which written opinion is acceptable and delivered to the addressee(s).
"Original Certificates": As defined in the Preliminary Statement.
"Original 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 $1,122,153,392.
"Original Class Principal Balance": With respect to any Class of
Sequential Pay Certificates, the original Class Principal Balance thereof as of
the Original Closing Date, in each case as set forth below:
Original Class
Class Principal Balance
----- -----------------
Class A-1(1) $ 123,059,500
Class A-2(1) $ 49,633,396
Class A-1C $ 98,750,132
Class A-2C $ 120,594,464
Class A-3(2) $ 61,860,297
Class A-4(3) $ 250,372,639
Class A-5(4) $ 114,901,548
Class B $ 56,107,669
Class C $ 44,886,135
Class D $ 67,329,203
Class E $ 16,832,300
Class F $ 56,107,669
Class G $ 8,416,150
Class H $ 22,443,067
Class J $ 2,805,383
Class K $ 28,053,840
- ---------------------------------
(1) Combined into "Class A-1" on First Sequel Closing Date.
(2) Designated "Class A-2" on Second Sequel Closing Date.
(3) Designated "Class A-3" on Second Sequel Closing Date.
(4) Designated "Class A-4" on Second Sequel Closing Date.
"Original Closing Date": August 17, 1999.
"Original Pooling Agreement": As defined in the Preliminary
Statement.
"ORIX": ORIX Real Estate Capital Markets, LLC, or its successor in
interest.
"OTS": The Office of Thrift Supervision or any successor thereto.
"Over 49% Interest": As defined in Section 3.26(h).
"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 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. With respect to the Class UX Uncertificated
Interest, for any Distribution Date, the Class UX 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; 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 C, Class D, Class E, Class F,
Class G, Class H, Class J, and Class K Certificates), the First Sequel Closing
Date (in the case of the Class A-1 Certificates) or the Second Sequel Closing
Date (in the case of the Class A-2, Class A-3, Class A-4, Class A-1C, Class
A-2C, Class B and Class X 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 Encumbrances": As defined in Section 2.05(b)(v).
"Permitted Investments": Any one or more of the following
obligations:
(a) 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;
(b) 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 Fitch, "AAA" by DCR (if rated by DCR) and "AAA" by S&P;
(c) federal funds, uncertificated 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 "F-1+" by Fitch, "D-1+" by DCR
(if rated by DCR) and "A-1+" by S&P;
(d) 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 "F-1+" by Fitch, "D-1+" by DCR
(if rated by DCR) and "A-1+" by S&P;
(e) units of money markets funds that maintain a constant asset
value and which are rated in the highest applicable rating category by each of
S&P (i.e. "AAAm" or "AAAmG"), Fitch and DCR (if not rated by DCR, then a
confirmation that such fund will not result in a downgrade or withdrawal of the
rating on any Class of Certificate); and
(f) any other obligation or security which would not result in
the downgrade, qualification (if applicable) 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.
"Placement Agent": Banc of America Securities LLC.
"Plan": As defined in Section 5.02(c).
"Portfolio Senior Certificate Principal Distribution Amount": With
respect to Loan Group 2, and with respect to any Distribution Date, the portion
of the Principal Distribution Amount with respect to Loan Group 2 for such
Distribution Date that represents scheduled payments, Balloon Payments,
Principal Prepayments, Liquidation Proceeds, and REO Revenues to the extent
allocable to principal.
"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 Regular Interests the REMIC III Uncertificated Regular Interest,
the REMIC IIIU Uncertificated Regular Interests and the Certificates for federal
income tax purposes.
"Prepayment Interest Excess": With respect to any Mortgage Loan that
was subject to a Principal Prepayment in full or in part made on or prior to the
Determination Date in any calendar month but after the first day of such month,
any payment of interest (net of related Master 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 non-Specially
Serviced 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 that would have accrued at a per annum rate equal to the
sum of the Net Mortgage Rate for such non-Specially Serviced 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 non-Specially Serviced 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.
"Prepayment Premium Amount": As defined in Section 4.01(c).
"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 Texas and, with respect to the Special
Servicer, the office thereof primarily responsible for performing its respective
duties under this Agreement, initially located in Texas.
"Principal Distribution Amount": With respect to any Distribution
Date, the aggregate of the Current Principal Distribution Amount for such
Distribution Date and, if such Distribution Date is subsequent to the initial
Distribution Date, the excess, if any, of the Principal Distribution Amount for
the preceding Distribution Date, over the aggregate distributions of principal
made on the Sequential Pay Certificates on the preceding Distribution Date.
"Principal Prepayment": Any payment of principal made by the
Mortgagor on a Mortgage Loan which is received in advance of its scheduled Due
Date and which is not accompanied by an amount of interest (without regard to
any Prepayment Premium that may have been collected) representing scheduled
interest due on any date or dates in any month or months subsequent to the month
of prepayment.
"Prospectus Supplement": That certain prospectus supplement dated
November 10, 1999, relating to the Class A, Class B, Class C, Class D and Class
X 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.
"Qualified Appraiser": In connection with the appraisal of any
Mortgaged Property or REO Property, an Independent MAI-designated appraiser with
at least five years of experience in respect of the relevant geographic location
and property type.
"Qualified Institutional Buyer": As defined in Section 5.02(b).
"Qualified Insurer": An insurance company or security or bonding
company qualified to write the related Insurance Policy in the relevant
jurisdiction.
"Rating Agency": Each of Fitch, DCR and S&P.
"Rated Final Distribution Date": As to each Class of Certificates,
the Distribution Date in May, 2031.
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 Due
Date in the Due Period related to 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, at the related Mortgage Rate
to but not including the Due Date in the Due Period related to 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 Due Period related to
the 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. Notwithstanding the
foregoing, the "Record Date" for purposes of the October, 1999 Distribution Date
with respect to the Class A-1 and the Class X Certificates will be the Sequel
Closing Date.
"Registered Certificates": Any Certificate that has been registered
under the Securities Act.
"Regular Certificates": Any of the Class A-1, Class A-2, Class A-3,
Class A-4, Class A-1C, Class A-2C, 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.
"REMIC": A "real estate mortgage investment conduit" as defined in
Section 860D of the Code.
"REMIC Administrator": Norwest Bank Minnesota, National Association,
its successor in interest, or any successor REMIC administrator appointed as
herein provided.
"REMIC I": A segregated pool of assets subject hereto and to be
administered hereunder, with respect to which a REMIC election is to be made,
consisting of: (i) the Mortgage Loans as from time to time are subject to this
Agreement and all payments under and proceeds of such Mortgage Loans received or
receivable after the Cut-off Date (other than payments of principal, interest
and other amounts due and payable on the Mortgage Loans on or before the Cut-off
Date), together with all documents, Escrow Payments and Reserve Funds delivered
or caused to be delivered hereunder with respect to such Mortgage Loans by the
Mortgage Loan Seller; (ii) any REO Property acquired in respect of a Mortgage
Loan and all payments and proceeds of such REO Property; and (iii) such amounts
on or with respect to clauses (i) or (ii) as from time to time are deposited in
the Distribution Account, the Certificate Account, the Interest Reserve 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 LA-3, Class LA-4, Class LA-5, Class LA-1C, Class LA-2C, 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 1999-2, 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": On and after the Second Sequel Closing
Date, the REMIC II Uncertificated Regular Interests and the Unaffected REMIC II
Certificates.
"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 II Uncertificated Regular Interests": Any of the Class MA-1,
Class MA-2, Class MA-3, Class MA-4, Class MA-5, Class MA-1C, Class MA-2C, Class
MB and Class MX Uncertificated Interests.
"REMIC III": A segregated pool of assets subject hereto and to be
administered hereunder, and consisting of the Class MA-1, Class MA-2 and Class
MX Uncertificated Interests, and amounts distributed thereon as from time to
time are held in the REMIC III Distribution Account.
"REMIC III Certificate": Each of the Class A-1 and Class R-III
Certificates.
"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 1999-2, REMIC
III Distribution Account" and which account shall be an Eligible Account.
"REMIC III Distribution Amount": As defined in Section 4.01(a)(i).
"REMIC III Regular Certificate": Any Class A-1 Certificate.
"REMIC III Regular Interests": On and after the First Sequel Closing
Date, the REMIC III Uncertificated Regular Interest and the Unaffected REMIC III
Certificates.
"REMIC III Uncertificated Regular Interest": The Class UX
Uncertificated Interest.
"REMIC IIIU": A segregated pool of assets subject hereto and to be
administered hereunder and consisting of the Class MA-3, Class MA-4, Class MA-5,
Class MA-1C and Class MA-2C Uncertificated Interests and amounts distributed
thereon as from time to time are held in the REMIC IIIU Distribution Account.
"REMIC IIIU 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, as Trustee, in trust for Holders of NationsLink Funding Corporation,
Commercial Mortgage Pass-Through Certificates, Series 1999-2, REMIC IIIU
Distribution Account," and which account shall be an Eligible Account.
"REMIC IIIU Distribution Amount": As defined in Section 4.01(a)(i).
"REMIC IIIU Uncertificated Regular Interests": Any of the Class
UA-2, Class UA-3, Class UA-4, Class UA-1C and Class UA-2C Uncertificated
Interests.
"REMIC IIIU Remittance Rate": With respect to and REMIC IIIU
Uncertificated Regular Interest, the Weighted Average Adjusted Net Mortgage
Rate.
"REMIC IV": A segregated pool of assets subject hereto and to be
administered hereunder and consisting of the Class UA-2, Class UA-3, Class UA-4,
Class UA-1C, Class UA-2C, Class MB and Class UX Uncertificated Interests and
amounts distributed thereon as from time to time are held in the REMIC IV
Distribution Account.
"REMIC IV Certificate": Any of the Class A-2, Class A-3, Class A-4,
Class A-1C, Class A-2C, Class B, Class X and Class R-IV Certificates.
"REMIC IV 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, as
Trustee, in trust for Holders of NationsLink Funding Corporation, Commercial
Mortgage Pass-Through Certificates, Series 1999-2, REMIC IV Distribution
Account," and which account shall be an Eligible Account.
"REMIC IV Regular Certificate": Any REMIC IV Certificate, other than
a Class R-IV 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:
(a) 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);
(b) 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;
(c) any amount received or accrued, directly or indirectly,
with respect to such REO Property if any Person Directly Operates such REO
Property;
(d) 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
(e) 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 "ORIX Real
Estate Capital Markets, LLC, as Special Servicer, in trust for registered
holders of NationsLink Funding Corporation, Commercial Mortgage Pass-Through
Certificates, Series 1999-2, REO Account".
"REO Acquisition": The acquisition of an REO Property for federal
income tax purposes pursuant to Treasury Regulations Section 1.856-6.
"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
related Collection Period and (iii) the value of the REO Property based on the
most recent Appraisal or other valuation thereof available to the Master
Servicer as of such Determination Date (including any valuation prepared
internally by the Special Servicer).
"Request for Release": A request for release signed by a Servicing
Officer of, as applicable, the Master Servicer or Special Servicer in the form
of Exhibit D attached hereto.
"Required Appraisal Loan": As defined in Section 3.19(b).
"Required Claims-Paying Ratings": With respect to any insurance
carrier, claims-paying ability ratings at least equal to the following minimum
ratings assigned to such carrier by at least two of the following parties (one
of which, except with respect to a fidelity bond or errors and omission
insurance maintained by a Sub-Servicer but only to the extent in force as of the
Original Closing Date, 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 Investors Service, Inc., ("A2" or better), DCR ("A" or better),
Fitch ("A" or better), S&P ("A" or better) and A.M. Best ("A: 1X" or better);
provided, however, that a rating by A.M. Best shall be disregarded and shall not
count as one of the two required ratings except with respect to a fidelity bond
or errors and omissions insurance maintained by a Sub-Servicer and then only to
the extent in force as of the Original Closing Date. Notwithstanding the
preceding sentence, an insurance carrier with lower or fewer claims-paying
ability ratings shall be deemed to have the "Required Claims-Paying Ratings" if
each of the Rating Agencies has confirmed in writing that such insurance carrier
shall not result, in and of itself, in a downgrading, withdrawal or
qualification (if applicable) 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, Class R-III,
Class R-IIIU Certificate or Class R-IV 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.
"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.
"Second Sequel Closing Date": November 23, 1999.
"Securities Act": The Securities Act of 1933, as amended.
"Security Agreement": With respect to any Mortgage Loan, any
security agreement, chattel mortgage or similar document or instrument, whether
contained in the related Mortgage or executed separately, creating in favor of
the holder of such Mortgage a security interest in the personal property
constituting security for repayment of such Mortgage Loan.
"Senior Certificate": Any Class A-1, Class A-2, Class A-3, Class
A-4, Class A-1C, Class A-2C 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 Certificates outstanding immediately prior to such Distribution Date exceeds
the sum of (a) the aggregate Stated Principal Balance of the Mortgage Pool that
will be outstanding immediately following such Distribution Date, plus (b) the
lesser of (i) the Principal Distribution Amount for such Distribution Date and
(ii) the portion of the Available Distribution Amount for such Distribution Date
that will remain after the distributions of interest to be made on the Senior
Certificates on such Distribution Date have been so made.
"Sequential Pay Certificate": Any Class A, Class B, Class C, Class
D, Class E, Class F, Class G, Class H, Class J or Class K Certificate.
"Servicer Reports": As defined in Section 4.02.
"Servicer Watch List": As defined in Section 4.02(b).
"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(b)(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 (k) and (w)
through (z) of the definition of "Specially Serviced Mortgage Loan".
"Similar Law": As defined in Section 5.02(c).
"Single Certificate": For purposes of Section 4.02(a), a Certificate
of any Class of REMIC II Regular Certificates evidencing a $1,000 denomination
or, in the case of a Class X Certificate, a 100% Percentage Interest.
"Single-Purpose Entity": A Person, other than an individual, whose
organizational documents provide that it is formed solely for the purpose of
owning the related Mortgaged Property, Mortgaged Properties securing other
Mortgage Loans and assets incidental to the ownership and operation of such
Mortgaged Property or Properties, and which has agreed, either in such
organizational documents or the loan documents relating to any related Mortgage
Loan, that it (a) does not engage in any business unrelated to such property and
the financing thereof; (b) does not have any indebtedness other than as
permitted by the related Mortgage, (c) maintains its own books, records and
accounts, in each case which are separate and apart from the books, records and
accounts of any other Person; (d) conducts business in its own name; (e) does
not guarantee or assume the debts or obligations of any other person; (f) does
not commingle its assets or funds with those of any other Person; (g) transacts
business with affiliates on an arm's length basis; and (h) holds itself out as
being a legal entity separate and apart from any other Person. In addition, such
entity's organizational documents provide that any dissolution and winding up or
insolvency filing for such entity requires either the unanimous consent of all
partners or members, as applicable, or the consent of an independent Person
(whether as a partner, member, or director in such entity or in any Person that
is the managing member or general partner of such entity or otherwise), and
either such organizational documents or the terms of the mortgage loan documents
provide that such organizational documents may not be amended without the
consent of the lender as regards such single-purpose entity requirements.
"Special Servicer": ORIX Real Estate Capital Markets, LLC, its
successor in interest, or any successor special servicer appointed as herein
provided.
"Special Servicer Loan Status Report": A report or reports (which
need not be in a separate report or reports from the reports listed in clauses
(1), (2), (3), (4) and (6) of Section 4.02(b)) 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, 25 basis points (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 or the Special 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 or the Special Servicer shall have
received notice of the commencement of foreclosure or similar proceedings with
respect to the related Mortgaged Property; or
(i) the Master Servicer, the Trustee or the Fiscal Agent has
made three consecutive P&I Advances, regardless of whether such P&I Advances
have been reimbursed (provided, however, that such P&I Advances shall, for
purposes of this Sub-Section (i), be deemed to exclude P&I Advances made by the
Master Servicer under Section 4.03(a) which are made during any applicable grace
period under a Mortgage Loan); or
(j) to the extent not covered by (c) above, the Master Servicer
has actual knowledge of a hardship of the Related Mortgagor that will, in the
reasonable judgment of the Master Servicer, cause an inability to pay the
Mortgage Loan in accordance with its terms and therefor, in the reasonable
judgment of the Master Servicer in accordance with the Servicing Standard, the
related Mortgagor is in imminent risk of default of one or more of the terms of
the Mortgage Loan); or
(k) except for the Mortgage Loans shown in Schedule III and
Schedule XVII, the related Mortgagor has failed to pay any taxes, assessments,
water or sewer rents, or other charges relating to or assessed against the
Mortgaged Property or upon the interest of the Mortgagee of the Mortgaged
Property, which in the opinion of the Master Servicer materially and adversely
affects the related Mortgaged Property or the related Mortgage Loan, on that
date when penalties and/or interest begin to accrue on unpaid taxes, and ninety
(90) days thereafter such taxes and penalties and/or interest remain unpaid;
provided, however, that if the Master Servicer makes a Servicing Advance to pay
such taxes, assessments, water or sewer rents or other charges, then the
Mortgage Loan shall not be deemed to be a Specially Serviced Mortgage Loan
solely by virtue of the fact that such taxes, assessments, water rents or other
charges remain unpaid; provided further, however, that the plan for repayment of
such taxes, assessments, water or sewer rents or other charges must require such
repayment within 90 days after the date of the Servicing Advance, and failure to
make such repayment within such 90 day period shall render the Mortgage Loan a
Specially Serviced Mortgage Loan.
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),
(b) and (i) 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), (g), and (j) 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 clauses (d)
and (k) above, such default or tax delinquency 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, .075 basis points (0.00075%) per annum.
"Startup Day": With respect to each of REMIC I, REMIC II, REMIC III,
REMIC IIIU and REMIC IV, 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.
"Subordinate 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,
REMIC III, REMIC IIIU and REMIC IV, 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, REMIC III, REMIC IIIU and REMIC IV 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, REMIC III, REMIC IIIU and
REMIC IV 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,
REMIC III, REMIC IIIU and REMIC IV.
"Trust REMICs": REMIC I, REMIC II, REMIC III, REMIC IIIU and REMIC
IV.
"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 Stated Principal Balance as of the Due Date in the
immediately preceding Collection Period and for the same number of days (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) 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.
"Trustee Fee Rate": A rate of .00225% per annum.
"Trustee's Website": The website maintained by the Trustee and
initially located at "www.ctslink.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": The Unaffected REMIC II Certificates and
the Unaffected REMIC III Certificates.
"Unaffected REMIC II Certificates": As defined in the Preliminary
Statement.
"Unaffected REMIC III 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. 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. With respect to the REMIC III
Uncertificated Regular Interest for any Distribution Date, one month's accrued
interest at the Class UX Pass-Through Rate for such Distribution Date or the
Class UX Notional Amount of such REMIC III Uncertificated Regular Interest
outstanding immediately prior to such Distribution Date. With respect to any
REMIC IIIU Uncertificated Regular Interest, for any Distribution Date, one
month's interest at the REMIC IIIU Remittance Rate applicable to such REMIC IIIU
Uncertificated Regular Interest for such Distribution Date, accrued on the
Uncertificated Principal Balance of such REMIC IIIU Uncertificated Regular
Interest outstanding immediately prior to such Distribution Date. The
Uncertificated Accrued Interest in respect of any REMIC I Regular Interest,
REMIC II Uncertificated Regular Interest, REMIC III Uncertificated Regular
Interest or REMIC IIIU 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 excess of (a) the Net Aggregate Prepayment Interest
Shortfall, if any, for such Distribution Date, over (b) the portion of such Net
Aggregate Prepayment Interest Shortfall allocated to the Class C, Class D, Class
E, Class F, Class G, Class H, Class J and Class K Certificates pursuant to the
definition of "Distributable Certificate Interest," 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. With respect to the REMIC III Uncertificated Regular
Interest for any Distribution Date, the Uncertificated Accrued Interest in
respect of such REMIC III Uncertificated Regular Interest, reduced (to not less
than zero) by the excess of (a) the Net Aggregate Prepayment Interest Shortfall,
if any, for such Distribution Date over (b) the sum of the portions of such Net
Aggregate Prepayment Interest Shortfall allocated to the Class MA-1, Class MA-2,
Class MA-3, Class MA-4, Class MA-5, Class MA-1C, Class MA-2C and Class MB
Uncertificated Interest pursuant to the preceding sentence and to the Class C,
Class D, Class E, Class F, Class G, Class H, Class J and Class K Certificates
pursuant to the definition of "Distributable Certificate Interest". With respect
to any REMIC IIIU Uncertificated Regular Interest, for any Distribution Date
after the Second Sequel Closing Date, the Uncertificated Accrued Interest in
respect of such REMIC IIIU Uncertificated Regular Interest for such Distribution
Date, reduced (to not less than zero) by the product of (i) the excess of (a)
the Net Aggregate Prepayment Interest Shortfall, if any, for such Distribution
Date over (b) the sum of the portions of such Net Aggregate Prepayment Interest
Shortfall allocated to the Class MA-1, Class MA-2 and Class MB Uncertificated
Interests pursuant to the second preceding sentence, to the REMIC III
Uncertificated Regular Interest pursuant to the preceding sentence and to the
Class C, Class D, Class E, Class F, Class G, Class H, Class J and Class K
Certificates pursuant to the definition of "Distributable Certificate Interest,"
multiplied by (ii) a fraction, the numerator of which is the Uncertificated
Accrued Interest in respect of such REMIC IIIU Uncertificated Regular Interest
for such distribution Date, and the denominator of which is the aggregate
Uncertificated Accrued Interest in respect of all the REMIC IIIU 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 Original Class Principal Balance of the Corresponding Class
of Certificates (in the case of the Class LA-1 Uncertificated Interest and the
Class LA-2 Uncertificated Interest, the Original Class Principal Balance of the
Class A-1 and the Class A-2 Certificates as noted in footnote (i) on Page 3 of
this Agreement), and (ii) as of any date of determination after the first
Distribution Date, an amount equal to the Class Principal Balance or
Uncertificated Principal Balance, as applicable, of the Class of REMIC II
Regular Interests corresponding thereto on the Distribution Date immediately
prior to such date of determination, in each case after giving effect to
distributions made, or any Realized Losses or Additional Trust Fund Expenses
applied, as of such Distribution Date. With respect to the Class MA-1 and Class
MA-2 Uncertificated Interests, (i) for the October, 1999 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
October, 1999 Distribution Date, an amount equal in the aggregate to the Class
Principal Balance of the Class A-1 Certificates on the Distribution Date
immediately prior to such date of determination, and as to each such Class of
REMIC II Uncertificated Regular Interest, determined by applying (i) principal
distributed in reduction of the Class Principal Balance of the Class A-1
Certificates sequentially to each such Class of REMIC II Uncertificated Regular
Interest until the Certificate Principal Balance of the Subordinate Certificates
has been reduced to zero and pro rata thereafter and (ii) any Realized Losses
and Additional Trust Fund Expenses in reduction of the Class Principal Balance
of the Class A-1 Certificates pro rata between such Classes of REMIC II
Uncertificated Regular Interests. With respect to the Class MA-3, Class MA-4,
Class MA-5, Class MA-1C and Class MA-2C Uncertificated Interests (i) for the
December 1999 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 determination after the December 1999 Distribution Date, an amount
equal to the aggregate of Class Principal Balances of the Class A-2, Class A-3,
Class A-4, Class A-1C and Class A-2C Certificates on the Distribution Date
immediately prior to such date of determination, and as to each such Class of
REMIC II Uncertificated Regular Interest, determined by applying (i) principal
distributed in reduction of the Class Principal Balances of the Class A-2, Class
A-3, Class A-4, Class A-1C and Class A-2C Certificates in the manner provided in
the last sentence of this definition to each such Class of REMIC II
Uncertificated Regular Interest until the Certificate Principal Balance of the
Subordinated Certificates has been reduced to zero and pro rata thereafter and
(ii) any Realized Losses and Additional Trust Fund Expenses in reduction of the
Class Principal Balances of the Class A-2, Class A-3, Class A-4, Class A-1C and
Class A-2C Certificates pro rata among such Classes of REMIC II Uncertificated
Regular Interests. With respect to the Class MB Uncertificated Interest and any
Class of REMIC IIIU Uncertificated Regular Interests, (i) for the December 1999
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 December 1999 Distribution Date, an amount equal to the
Class Principal Balance of the Class of Corresponding Certificates on the
Distribution Date immediately prior to such date of determination. The manner on
which the principal distributed in reduction of the Class Principal Balances of
the Class A-1, Class A-2, Class A-3, Class A-4, Class A-1C and Class A-2C
Certificates shall be applied in order to determine the Uncertificated Principal
Balances of the Class MA-1, Class MA-2, Class MA-3, Class MA-4, Class MA-5,
Class MA-1C and Class MA-2C Uncertificated Interests, respectively, shall be as
follows on any Distribution Date: (i) first, sequentially to the Class MA-1,
Class MA-2, MA-3, Class MA-4 and Class MA-5 Uncertificated Interests, in that
order, until the Uncertificated Principal Balance thereof has been reduced to
zero, an amount up to the Portfolio Senior Certificate Principal Distribution
Amount for such Distribution Date, (ii) second, sequentially to the Class MA-1C,
Class MA-2C, Class MA-1, Class MA-2, Class MA-3, Class MA-4 and Class MA-5
Uncertificated Interests, in that order, until the Uncertificated Principal
Balance thereof has been reduced to zero, an amount up to the remaining portion
of the Principal Distribution Amount for such Distribution Date remaining after
the distribution described in the preceding clause (i).
"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, any state or the District of Columbia, including an
entity treated as a corporation or partnership for federal income tax purposes,
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.
"Weighted Average Master Servicing Fee Rate": 16.080 basis points,
or 0.16080% per annum.
"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 NB Owner Trust and, at the direction of the
Depositor given pursuant to the 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 NB Owner Trust and the Mortgage Loan Seller, respectively, in,
to and under the Mortgage Loans identified on the Mortgage Loan Schedule and all
other assets included or to be included in REMIC I. Such assignment includes (i)
the Mortgage Loans as from time to time are subject to this Agreement and all
payments under and proceeds of such Mortgage Loans received or receivable after
the Cut-off Date (other than payments of principal, interest and other amounts
due and payable on the Mortgage Loans on or before the Cut-off Date) together
with all documents delivered or caused to be delivered hereunder with respect to
such Mortgage Loans by the Mortgage Loan Seller; (ii) any REO Property acquired
in respect of a Mortgage Loan; and (iii) such funds or assets as from time to
time are deposited in the Certificate Account, the Distribution Account, the
REMIC II Distribution Account, the REMIC III Distribution Account, the REMIC
IIIU Distribution Account, the REMIC IV 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 NB Owner Trust 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 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 to the Trustee to secure a debt or other
obligation of the NB Owner Trust 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
NB Owner Trust 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 NB Owner Trust 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 REMIC
IIIU Distribution Account, the REMIC IV 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 or 9-115 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 NB Owner Trust, 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 assignment pursuant to subsection (b)
above, the Mortgage Loan Seller (at the direction of the Depositor or the NB
Owner Trust, as the case may be, pursuant to the Mortgage Loan Purchase and Sale
Agreement) 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. If the
Mortgage Loan Seller is unable to deliver or cause the delivery of any original
Mortgage Note, it may deliver a copy of such Mortgage Note, together with a lost
note affidavit, and shall thereby be deemed to have satisfied the document
delivery requirements of this Section 2.01(c). If the Mortgage Loan Seller
cannot so deliver, or cause to be delivered, as to any Mortgage Loan, the
original or a copy of any of the documents and/or instruments referred to in
clauses (ii), (iv), (viii), (xi)(A) and (xiii) 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 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 has provided the
Trustee with evidence of such submission for recording or filing, as the case
may be, or has certified to the Trustee as to the occurrence of such submission
for recording or filing, as the case may be, and is, as certified to the Trustee
no less often than monthly, in good faith attempting to obtain from the
appropriate recording or filing office such original or copy). If the Mortgage
Loan Seller cannot or does not so deliver, or cause to be delivered, as to any
Mortgage Loan, the original of any of the documents and/or instruments referred
to in clauses (iii), (v), and (xi)(B) of the definition of "Mortgage File",
because such document or instrument has been delivered for recording or filing,
as the case may be, the delivery requirements of this Section 2.01(c) shall be
deemed to have been satisfied as to such missing item, and such missing item
shall be deemed to have been included in the related Mortgage File, provided
that a copy of such document or instrument (without evidence of recording or
filing thereon, but certified (which certificate may relate to multiple
documents and/or instruments) by the Mortgage Loan Seller to be a true and
complete copy of the original thereof submitted for recording or filing, as the
case may be) is delivered to the Trustee or a Custodian appointed thereby on or
before the 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 has provided the
Trustee with evidence of such submission for recording or filing, as the case
may be, or has certified to the Trustee as to the occurrence of such submission
for recording or filing, as the case may be, and is, as certified to the Trustee
no less often than monthly, in good faith attempting to obtain from the
appropriate recording or filing office such original or copy). If the Mortgage
Loan Seller cannot so deliver, or cause to be delivered, as to any Mortgage
Loan, the original or a copy of the related lender's title insurance policy
referred to in clause (ix) of the definition of "Mortgage File" solely because
such policy has not yet been issued, the delivery requirements of this Section
2.01(c) shall be deemed to be satisfied as to such missing item, and such
missing item shall be deemed to have been included in the related Mortgage File,
provided that the Mortgage Loan Seller shall have delivered to the Trustee or a
Custodian appointed thereby, on or before the Original Closing Date, a binding
commitment for title insurance "marked-up" at the closing of such Mortgage Loan,
and the Mortgage Loan Seller shall deliver to the Trustee or such Custodian,
promptly following the receipt thereof, the original related lender's title
insurance policy (or a copy thereof). In addition, notwithstanding anything to
the contrary contained herein, if there exists with respect to any Group of
related Cross-Collateralized Mortgage Loans only one original of any document
referred to in the definition of "Mortgage File" covering all the Mortgage Loans
in such Group, then the inclusion of the original of such document in the
Mortgage File for any of the Mortgage Loans in such Group shall be deemed an
inclusion of such original in the Mortgage File for each such Mortgage Loan.
None of the Trustee, any Custodian, the Depositor, the Master Servicer or the
Special Servicer shall in any way be liable for any failure by the Mortgage Loan
Seller to comply with the delivery requirements of this Section 2.01(c).
If any of the endorsements referred to in clause (i) of the
definition of "Mortgage File", any of the assignments of Mortgage referred to in
clause (iii) of the definition of "Mortgage File", any of the assignments of
Assignment of Leases referred to in clause (v) of the definition of "Mortgage
File", or any of the assignments of Security Agreement referred to in clause
(vii) of the definition of "Mortgage File" are delivered to the Trustee in
blank, the Trustee shall (without being obligated to record or file such) be
responsible for completing the related endorsement or assignment in the name of
the Trustee (in such capacity).
(d) The Mortgage Loan Seller shall, as to each Mortgage Loan, at its
own expense, promptly (and in any event within 45 days of the 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 periodically forward a copy
of each thereof to the Master Servicer. If any such document or instrument is
lost or returned unrecorded or unfiled, as the case may be, because of a defect
therein, the Mortgage Loan Seller shall promptly prepare or cause the
preparation of a substitute therefor or cure or cause the curing of such defect,
as the case may be, and thereafter the Mortgage Loan Seller shall, at its own
expense, submit the substitute or corrected documents or cause such to be
submitted for recording or filing, as appropriate.
(e) All documents and records in the Mortgage Loan Seller's
possession (or under its control) relating to the Mortgage Loans (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 under its
control) with respect to the Mortgage Loans, shall be delivered or caused to be
delivered by the Mortgage Loan Seller to the Master Servicer, within 10 days of
the 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 Mortgage Loan which
is secured by the interest of the related Mortgagor under a Ground Lease, at its
own expense, promptly (and in any event within 45 days of the 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.
(g) In connection with its assignment of the Conduit Mortgage Loans
hereunder, each of the Mortgage Loan Seller and the NB Owner Trust hereby
expressly assigns to the Trustee for the benefit of the Certificateholders any
and all rights the Mortgage Loan Seller or the NB Owner Trust may have with
respect to representations and warranties made by an NB Conduit Originator with
respect to any Mortgage Loan under the mortgage loan purchase agreement between
the Mortgage Loan Seller and the NB Conduit Originator that originated such
Mortgage Loan pursuant to which the Mortgage Loan Seller originally acquired
such Mortgage Loan from such NB Conduit Originator. In the event such Mortgage
Loan is repurchased by the Mortgage Loan Seller, the Trustee shall re-assign
such rights under the relevant mortgage loan purchase agreement to the Mortgage
Loan Seller in respect of such Mortgage Loan.
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 XXIII, 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),
in good faith and without notice of any adverse claim, and declares that it or a
Custodian on its behalf holds and will hold the documents delivered or caused to
be delivered by the Mortgage Loan Seller in respect of the Mortgage Loans, and
that it holds and will hold all 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 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 (substantially in the form of Exhibit I) to each of the
Depositor, the Master Servicer, the Special Servicer and the Mortgage Loan
Seller that as to each Mortgage Loan listed in the Mortgage Loan Schedule (other
than any Mortgage Loan paid in full or otherwise liquidated), and except as
specifically identified in any exception report annexed to such certification,
(i) all documents specified in clauses (i) through (iii), (ix) (without regard
to the verification of the effective date) and, if the Mortgage Loan Schedule
specifies that the related Mortgagor has a leasehold interest in the related
Mortgaged Property, (xiii) of the definition of "Mortgage File" are in its
possession or the possession of a Custodian on its behalf, or the Mortgage Loan
Seller has otherwise satisfied the delivery requirements in respect of such
documents in accordance with Section 2.01(c), (ii) all documents received by it
or any Custodian in respect of such Mortgage Loan have been reviewed by it or by
a Custodian on its behalf and appear regular on their face and relate to such
Mortgage Loan, and (iii) based on such examination and only as to the foregoing
documents, the information set forth in the Mortgage Loan Schedule with respect
to the items specified in clauses, (iv) and (vi)(B) of the definition of
"Mortgage Loan Schedule" is correct and the Mortgage Rate set forth in clause
(iii)(a) of the definition of "Mortgage Loan Schedule" matches the Mortgage Rate
in effect on the date of origination or of the most recent written amendment to
such Mortgage Rate which is contained in the Mortgage File.
(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
(substantially in the form of Exhibit J) to each of the Depositor, the Master
Servicer, the Special Servicer and the Mortgage Loan Seller that as to each
Mortgage Loan listed on the Mortgage Loan Schedule (other than any Mortgage Loan
paid in full or otherwise liquidated), and except as specifically identified in
any exception report annexed to such certification, (i) all documents specified
in clauses (i), (ii), (ix) (without regard to the verification of the effective
date) and, if the Mortgage Loan Schedule specifies that the related Mortgagor
has a leasehold interest in the related Mortgaged Property, (xiii) of the
definition of "Mortgage File" are in its possession or the possession of a
Custodian on its behalf, or the Mortgage Loan Seller has otherwise satisfied the
delivery requirements in respect of such documents in accordance with Section
2.01(c), (ii) it or a Custodian on its behalf has received either the original
or copy of each of the assignments specified in clauses (iii) and (v) of the
definition of "Mortgage File" that were delivered by the Mortgage Loan Seller
with evidence of recording thereon, (iii) all documents received by it or any
Custodian in respect of such Mortgage Loan have been reviewed by it or by such
Custodian on its behalf and appear regular on their face and relate to such
Mortgage Loan, and (iv) based on the examinations referred to in subsection (b)
above and this subsection (c) and only as to the foregoing documents, the
information set forth in the Mortgage Loan Schedule with respect to the items
specified in clauses (iv) and (vi)(B) of the definition of "Mortgage Loan
Schedule", is correct and the Mortgage Rate set forth in clause (iii)(a) of the
definition of "Mortgage Loan Schedule" matches the Mortgage Rate in effect on
the date of origination or of the most recent written amendment to such Mortgage
Rate which is contained in the Mortgage File.
(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 (xi) and (xiv) through (xx) of the definition
of "Mortgage File" exist or are required to be delivered by the Mortgage Loan
Seller in respect of any Mortgage Loan or (ii) to inspect, review or examine any
of the documents, instruments, certificates or other papers relating to the
Mortgage Loans delivered to it to determine that the same are genuine,
enforceable, in recordable form or appropriate for the represented purpose, or
that they are other than what they purport to be on their face.
(e) If, in the process of reviewing the documents delivered or
caused to be delivered by the Mortgage Loan Seller pursuant to Section 2.01(c),
the Trustee or any Custodian discovers that any document required to have been
delivered pursuant to Section 2.01(c) has not been so delivered, or discovers
that any of the documents that were delivered has not been properly executed,
contains information that does not conform in any material respect with the
corresponding information set forth in the Mortgage Loan Schedule, or is
defective on its face (each, including, without limitation, that a document is
missing, a "Document Defect"), or if, at any other time, the Trustee or any
other party hereto discovers a Document Defect in respect of any Mortgage Loan,
the party discovering such Document Defect shall promptly so notify each of the
other parties hereto. If and when such party is notified of or discovers any
error in the Mortgage Loan Schedule, the Mortgage Loan Seller shall promptly
correct such error and distribute a new, corrected Mortgage Loan Schedule to
each of the other parties hereto. Such new, corrected Mortgage Loan Schedule
shall be deemed to amend and replace the existing Mortgage Loan Schedule.
SECTION 2.03 Mortgage Loan Seller's Repurchase of Mortgage Loans for
Document Defects and Certain Breaches of Representations and Warranties.
(a)
(i)Within 90 days of the earlier of discovery or receipt of
written notice by the Mortgage Loan Seller, of a Document Defect in
respect of any Mortgage Loan or a breach of any representation or warranty
set forth in Section 2.05(b) in respect of any Mortgage Loan, which
Document Defect or breach, as the case may be, as determined by the
Trustee, subject to Sections 8.01 and 8.02 and its right to reimbursement
pursuant to Section 8.05(b), materially and adversely affects the value of
such Mortgage Loan or the interests of the Certificateholders therein, the
Mortgage Loan Seller shall cure such Document Defect or breach, as the
case may be, in all material respects or repurchase (or cause an Affiliate
to purchase) the affected Mortgage Loan at the applicable Purchase Price
by deposit of such Purchase Price into the Certificate Account and
delivery to the Trustee and the Master Servicer of a written certification
that such deposit has been made; provided, that, without limiting any of
the foregoing, the absence from the Mortgage File of: (v) the original
fully executed Mortgage Note, together with the endorsements identified in
clause (i) of the definition of Mortgage File; (w) the original fully
executed Mortgage (unless there is included in the Mortgage File a
certified copy of the Mortgage and the certificate states that the
original signed Mortgage was sent for recordation within the previous 180
days); (x) a title insurance policy or a copy thereof effective as of the
date of the recordation of the Mortgage Loan, together with all
endorsement or riders that were issued with or subsequent to the issuance
of such policy, insuring the priority of the Mortgage as a first lien on
the Mortgagor's fee interest in the Mortgaged Property, or if the policy
has not yet been issued, an original or copy or a written binding
commitment "marked up" at the closing of such Mortgage Loan, interim
binder or pro forma title insurance policy, evidencing a binding
commitment to issue such policy, dated as of the date on which related
Mortgage Loan was funded; (y) any material nonconformity to the Mortgage
Loan Schedule of any such document or any material irregularity on the
face thereof; or (z) copies of the Assignment Documents, together with
proof of recordation if the Mortgage Loan Seller deems proof of
recordation to be material, reflecting the chain of assignment of the
Mortgage Loan to the Trust (without the presence of any factor, such as a
lost note affidavit with an acceptable indemnity in the case of a missing
Mortgage Note, that reasonably mitigates such absence, non-conformity or
irregularity) shall be conclusively presumed to be a Document Defect that
materially and adversely affects the interests of the Certificateholders
in, or the value of, any Mortgage Loan, and shall obligate the party
discovering such to give the aforementioned prompt notice, whereupon the
Trustee shall notify the Depositor to cure such Document Defect, or,
failing that, repurchase the related Mortgage Loan, all in accordance with
the procedures set forth herein. However, if such Document Defect or
breach is capable of being cured but not within the 90 day period and the
Mortgage Loan Seller 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 Mortgage Loan Seller
delivered to the Trustee and the Master Servicer 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), the Mortgage Loan Seller 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 Mortgage Loan Seller that there is a Document
Defect or other breach of the representations and warranties set forth in
Section 2.05(b)(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, without regard to the rule of Treasury
Regulations Section 1.860G-2(f)(2) that treats a defective obligation as a
qualified mortgage for a temporary period), the Mortgage Loan Seller 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.
(ii) In the event of discovery of a breach of the representation
and warranty, as to environmental conditions under Section 2.05(b)(xiv)
with respect to both the Conduit Mortgage Loans and the Portfolio Mortgage
Loans), the Mortgage Loan Seller shall have an opportunity to cure such
breach. However, the breach will be deemed to have been cured if and only
if the Special Servicer (or, if the Mortgage Loan Seller shall be
designated as the Special Servicer, another independent Person designated
by the Master Servicer) shall have determined in good faith that (a) the
Mortgage Loan Seller has either caused the condition that was the cause of
such breach to be eliminated, or has established a reserve for the costs
of remediation of the condition that was the cause of such breach and has
instituted a program which was reasonably expected to remediate such
condition within two years after the program was instituted; (b) the
estimated cost to cure is less than 50% of the then-outstanding principal
balance of the Mortgage Loan; and, (c) retention of such Mortgage Loan in
the Mortgage Pool would not violate the Servicing Standard. The Master
Servicer shall not be entitled to Advance Interest from the Trust with
respect to Advances made by it with respect to such Mortgage Loan until
any such breach is cured but shall be entitled to recover Advance Interest
for such period from the Mortgage Loan Seller; however, if the Special
Servicer, the Trustee or the Fiscal Agent make such Advances because of a
failure of the Master Servicer to do so, then the Special Servicer, the
Trustee or the Fiscal Agent shall be entitled to promptly recover Advance
Interest with respect to such Advances for such period, but only from the
Mortgage Loan Seller, and not from the Trust or the Certificateholders.
(b) In connection with any repurchase of a Mortgage Loan
contemplated by this Section 2.03, the Trustee, the Master Servicer and the
Special Servicer shall each tender or cause to be tendered to the Mortgage Loan
Seller, upon delivery to each of the Trustee, the Master Servicer and the
Special Servicer of a receipt executed by the Mortgage Loan Seller, all portions
of the Mortgage File and other documents and funds pertaining to such Mortgage
Loan possessed by it (or any Custodian or Sub-Servicer on its behalf), and each
document that constitutes a part of the Mortgage File that was endorsed or
assigned to the Trustee shall be endorsed or assigned, as the case may be, to or
at the direction of the Mortgage Loan Seller, in the same manner. The form,
sufficiency and expense of all such instruments and certificates shall be the
responsibility of the Mortgage Loan Seller.
(c) This Section 2.03 provides the sole remedies available to the
Certificateholders, or to the Trustee on behalf of the Certificateholders,
respecting any Document Defect or any breach of any representation or warranty
set forth in Section 2.05(b) hereof. If the Mortgage Loan Seller defaults on its
obligations to repurchase any Mortgage Loan in accordance with Section 2.03(a)
hereof, or disputes its obligation to repurchase any Mortgage Loan in accordance
with any such provision, the Trustee shall promptly notify the
Certificateholders and, subject to Sections 8.01 and 8.02 and its right to
reimbursement pursuant to Section 8.05(b), shall take such action as may be
appropriate to enforce such payment or performance, including, without
limitation, the institution and prosecution of appropriate proceedings. If it is
judicially determined or subsequently agreed that the Mortgage Loan Seller is
required to repurchase such Mortgage Loan under Section 2.03(a) hereof, the
Mortgage Loan Seller shall reimburse the Trustee for all necessary and
reasonable costs and expenses incurred in connection with such enforcement, and
otherwise the Trustee's right of reimbursement shall be limited to amounts on
deposit in the Distribution Account from time to time in accordance with Section
8.05(b) and to such other sources of security and indemnity as shall have been
offered to the Trustee by the Certificateholders.
SECTION 2.04 Representations and Warranties of the Depositor.
(a) The Depositor hereby represents and warrants to each of the
other parties to this Agreement and for the benefit of the Certificateholders,
as of the Original Closing Date, the First Sequel Closing Date and the Second
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 made pursuant
to Section 2.05(b)(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.
(b) Upon discovery by any of the parties hereto of a breach of any
of the foregoing representations and warranties which materially and adversely
affects the interests of the Certificateholders or any party hereto, the party
discovering such breach shall give prompt written notice to each of the other
parties hereto.
SECTION 2.05 Representations and Warranties of the Mortgage Loan
Seller.
(a) The Mortgage Loan Seller hereby represents and warrants to the
other parties hereto and for the benefit of the Certificateholders, as of the
Original Closing Date, the First Sequel Closing Date and the Second 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. The NB Owner Trust is a business trust 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 Mortgage
Loan Seller and the NB Owner Trust, and the performance and compliance
with the terms of this Agreement by the Mortgage Loan Seller and the NB
Owner Trust, will not violate the Mortgage Loan Seller's or the NB Owner
Trust'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) Each of the Mortgage Loan Seller and the NB Owner Trust 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 and the NB Owner Trust,
enforceable against each of the Mortgage Loan Seller and the NB Owner
Trust 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) Neither the NB Owner Trust nor the Mortgage Loan Seller is 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 or
the NB Owner Trust to perform its obligations under this Agreement or the
financial condition of the Mortgage Loan Seller or the NB Owner Trust.
(vi) No litigation is pending or, to the best of the Mortgage
Loan Seller's knowledge, threatened against the Mortgage Loan Seller or
the NB Owner Trust which would prohibit Mortgage Loan Seller or the NB
Owner Trust from entering into this Agreement or, in Mortgage Loan Seller
or the NB Owner Trust's good faith and reasonable judgment, is likely to
materially and adversely affect either the ability of Mortgage Loan Seller
or the NB Owner Trust to perform its obligations under this Agreement or
the financial condition of Mortgage Loan Seller or the NB Owner Trust.
(vii) The Sub-Servicing Agreement in place as of the Original
Closing Date among the Master Servicer, ARCS Commercial Mortgage Co.,
L.P., a California limited partnership, Bank of America, N.A., Berkshire
Mortgage Finance Corporation, First Security Bank, N.A., L.J. Melody &
Company, Patrician Financial Company Limited Partnership and WMF
Washington Mortgage Corp. complies with the requirements of this Agreement
in all material respects.
(viii) The Mortgage Loan Seller is in possession of all licenses
necessary to carry on its business, and is in compliance with the laws of
each state in which any Mortgaged Property is located, in each case to the
extent that the failure to be so in possession or compliance would have a
material and adverse effect upon the enforceability of the Mortgage Loan
or upon the practical realization against the related Mortgaged Property
of the principal benefits of the security intended to be provided thereby.
(b) As regards the Mortgage Loans:
Portfolio Mortgage Loan Representations
The Mortgage Loan Seller hereby represents and warrants
("Representing Party" with respect to each such representation and warranty so
made) with respect to each Portfolio Mortgage Loan, to the other parties hereto
and for the benefit of the Certificateholders, as of the date specified in such
representation and warranty or, if no such date is specified, as of the Original
Closing Date, that:
(i) Immediately prior to the transfer thereof by Representing
Party or the NB Owner Trust to the Depositor (or to the Trustee at the
direction of the Depositor), the Representing Party or the NB Owner Trust,
as the case may be, 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.
(ii) The Representing Party or the NB Owner Trust, as the case
may be, had full right and authority to sell, assign and transfer such
Mortgage Loan to the Depositor (or to the Trustee at the direction of the
Depositor).
(iii) The information pertaining to such Mortgage Loan set forth
in the Mortgage Loan Schedule was true, complete and correct in all
material respects as of the Cut-off Date.
(iv) Except as indicated on Schedule II, such Mortgage Loan was
not, as of the Cut-off Date or at any time during the twelve month period
prior thereto, more than thirty (30) days delinquent in respect of any
Monthly Payment of principal and/or interest required thereunder, without
giving effect to any applicable grace period. Such non-delinquent status
with respect to principal and/or interest is not due to any advance made
by the Representing Party or the NB Owner Trust.
(v) Except as indicated on Schedule III, each Mortgage securing
such Mortgage Loan was recorded in the applicable jurisdiction and
constitutes a valid first lien upon the related Mortgaged Property,
including, without limitation, all buildings located thereon and all
fixtures attached thereto (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, (D) exceptions and exclusions
specifically referred to in the lender's title insurance policy 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. Notwithstanding the foregoing, no representation is made as
to the perfection of any security interest in personal property, except
that with respect to the Mortgage Loans listed on Schedule IV, the
Representing Party represents that a UCC Financing Statement has been
filed and/or recorded in all places necessary to permit a valid security
interest in the personal property granted under such Mortgage; any
security agreement, chattel mortgage or equivalent document related to and
delivered in connection with the Mortgage Loan establishes and creates a
valid and enforceable first lien and first priority security interest on
the property described therein (except as enforceability may be limited by
bankruptcy or other laws affecting creditor's rights generally or by the
application of general principles of equity). In the case of each Mortgage
Loan secured by a Mortgaged Property that is operated as a hotel,
healthcare facility, fitness center or theater, the related loan documents
contain such provisions as are necessary, and UCC Financing Statements
have been filed as necessary, in each case to perfect a valid security
interest in the related revenues with respect to such Mortgage Loan.
(vi) Except as indicated on Schedule V, 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 title
insurance company authorized to do business in the applicable
jurisdiction, 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. The
premiums due under such title insurance policy have been paid, and to the
Representing Party's actual knowledge, each title insurance policy is in
full force and effect and no claims have been made under any title
insurance policy. The Representing Party has no knowledge of any matter
which would impair or diminish the coverage of such policy.
(vii) To the best of the Representing Party's knowledge, neither
the Representing Party nor the NB Owner Trust has waived any material
default, breach, violation or event of acceleration existing and
continuing on the Original Closing Date under the related Mortgage or
Mortgage Note.
(viii) There is no valid offset, right of rescission, defense or
counterclaim to such Mortgage Loan.
(ix) The Representing Party has no actual knowledge (A) that
there is any proceeding pending 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) Such Mortgage Loan and the actions by or on behalf of the
originator thereof complied in all material respects with all requirements
of federal, state and local laws, including, without limitation, laws
pertaining to usury and relating to the origination, funding and servicing
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 or market value 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 terms of such Mortgage Loan require that the related
Mortgaged Property be insured by a fire and extended perils insurance
policy, issued by an insurer meeting the requirements of such Mortgage
Loan and covering, except as indicated on Schedule VI, not less than the
greater of the replacement cost of the Mortgage Property (with no
deduction for depreciation) and the amount necessary to avoid the
operation of co-insurance provisions with respect to such Mortgaged
Property. If the related Mortgaged Property is located in a 100-year
floodplain, such Mortgaged Property is also covered by a flood insurance
policy meeting the requirements of such Mortgage Loan.
(xiv) There is no material and adverse environmental condition or
circumstance affecting the Mortgaged Property, including, without
limitation, the presence of asbestos, lead based paint or radon that
materially and adversely affects the condition of the related Mortgaged
Property. This representation (xiv) acts independently of representation
(xiv(a)) regarding the Environmental Policy.
(xiv(a)) Each Portfolio Mortgage Loan is covered by the
Environmental Policy; all premiums therefor have been paid in full and
such policy is in full force and effect. All known environmental
conditions, known "Pollution Events" (as defined in the Environmental
Policy), or circumstances affecting the Portfolio Mortgaged Property have
been disclosed to Steadfast Insurance Company, the issuer of the
Environmental Policy.
(xv) 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 writing in any material respect.
(xvii) Except as indicated on Schedule VII, 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 all the
real property constituting a part of the Mortgaged Property.
(xix) Such Mortgage Loan is a whole loan and not a participation
interest.
(xx) The assignment of the related Mortgage to the Trustee is in
recordable form and 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). All of the Depositor's, the Representing
Party's and the NB Owner Trust's, as applicable, rights with respect to
such deposits are conveyed hereunder.
(xxii) Except as indicated on Schedule VIII, to the best of the
Representing Party's knowledge, as of the date of origination of such
Mortgage Loan and as of the Cut-off 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), except such liens as may be covered by a title
insurance policy.
(xxiii) 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.
(xxiv) 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 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 or disclosed in
any other representation and warranty made by the Representing Party with
respect to the Portfolio Mortgage Loans in this Section 2.05(b).
(xxv) 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, provide for the negative amortization of interest or
provide for interest-only payments without any principal amortization.
(xxvi) The related Mortgage(s) or Mortgage Note, together with
applicable state law, contains customary and enforceable provisions
(subject to the exceptions set forth in Portfolio Mortgage Loan
Representations (v) and (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.
(xxvii) 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).
(xxviii) Except as indicated on Schedule IX, the Representing
Party or the originator of such Mortgage Loan inspected, or caused to be
inspected, the related Mortgaged Property either (A) in connection with
the origination of the Mortgage Loan or (B) within the past 32 months.
(xxix) No fraud with respect to such Mortgage Loan has taken
place on the part of the Representing Party or, to the knowledge of the
Representing Party, any originator, in connection with the origination of
such Mortgage Loan.
(xxx) 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.
(xxxi) 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.
(xxxii) 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 was recorded in the applicable jurisdiction and which creates, in
favor of the holder, a valid, perfected and enforceable lien of the same
priority as the related Mortgage, in the rents and other 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 payment due
under the related leases.
(xxxiii) 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.
(xxxiv) 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
Cash Flow sufficient to service the Mortgage Loan.
(xxxv) 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) payment representing not less than 100% of the value of the
property being released (pro-rated using square footage or another
customary method), in the case of a partial release.
(xxxvi) (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 is 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).
(xxxvii) 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).
(xxxviii) Except as indicated on Schedule X, under the terms of
the related Mortgage, any insurance proceeds in excess of de minimis
amounts or condemnation award with respect to the Mortgaged Property will
be applied (subject to applicable law) 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.
(xxxix) 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.
(xl) 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.
(xli) 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 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 or lesser priority with, the
Mortgage. The Ground Lease is, and provides that it shall
remain, prior to any Mortgage or other lien upon the related
fee interest;
(C) The Ground Lease or a memorandum thereof has been duly
recorded, and the ground lease permits the interest of the
lessee thereunder to be encumbered by the related Mortgage.
There has not been a material change in the terms of the
Ground Lease since its recordation;
(D) 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 in writing prior to the
Original Closing Date) or, 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;
(E) 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;
(F) 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;
(G) 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;
(H) 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;
(I) The Ground Lease is not subject to any liens or encumbrances
superior to, or of equal or lesser priority with, the
Mortgage;
(J) All rights of the mortgagee under such Mortgage Loan under
such Ground Lease and the related Mortgage (insofar as it
relates to the Ground Lease) may be exercised by or on behalf
of such mortgagee;
(K) Such Ground Lease does not permit any increase in the amount
of rent payable by the lessee thereunder during the term of
the Mortgage Loan; and
(L) The Ground Lease is not subject to any liens or encumbrances
superior to, or of equal priority with, the related Mortgage.
The Ground Lease is, and provides that it shall remain, prior
to any Mortgage or other lien upon the related fee interest.
(xlii) Except as indicated on Schedule XI, such Mortgage Loan is
recourse to the related Mortgagor (subject to any applicable state
anti-deficiency legislation or market value deficiency legislation) except
as such recourse 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).
(xliii) No Mortgage Loan has been satisfied, canceled, rescinded
or subordinated in whole or (except in accordance with the terms thereof)
in part, and except as expressly contemplated by the related loan
agreement or other documents contained in the related Mortgage File, no
material portion of the Mortgaged Property has been released in whole or
in part.
(xliv) Except as indicated on Schedule XII, such Mortgage Loan
contains a "due-on-sale" clause that permits the loan holder to accelerate
the maturity of the loan if the related Mortgagor sells the related
property without the consent of the Mortgagee (other than by reason of
family and estate planning transfers of less than a controlling interest
in a Mortgagor, or a substitution or release of collateral within the
parameters of paragraph (xxxv) above).
(xlv) The Representing Party is in possession of the related
Mortgage File, which contains the related Mortgage, Mortgage Note and all
material amendments thereto.
(xlvi) Such Mortgage Loan requires the related Mortgagor to be
qualified to do business, and requires the related Mortgagor and the
related Mortgaged Property to be in material compliance with all
regulations, licenses, permits, authorizations, restrictive covenants and
zoning and building laws, in each case to the extent required by law or to
the extent that the failure to be so qualified or in compliance would not
have a material and adverse effect upon the enforceability of the Mortgage
Loan or upon the practical realization against the related Mortgaged
Property of the principal benefits of the security intended to be provided
thereby. The Representing Party has no actual knowledge that as of the
date of origination of such Mortgage Loan, (A) the related Mortgagor was
not 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 not valid and in full force and effect.
(xlvii) Except as indicated on Schedule XIII, the related
Mortgaged Property has been inspected at least once since January 1, 1998.
(xlviii) The Representing Party has no actual knowledge of any
pending action, suit, proceeding, arbitration or governmental
investigation against the related Mortgagor or the related Mortgaged
Property which, if adversely decided, would have a material and adverse
effect upon the enforceability of the Mortgage Loan or upon the practical
realization against the related Mortgaged Property of the principal
benefits of the security intended to be provided thereby.
(xlix) Except as indicated on Schedule XIV, such Mortgage Loan
requires the related Mortgagor to provide annual operating statements and
rent rolls.
(l) Except as indicated on Schedule XV, the Representing Party
has no actual knowledge that (A) any of the improvements that form part of
any Mortgaged Property lie outside the boundaries and restriction lines of
such property in any material respect, (B) any improvements on adjoining
properties encroach upon any Mortgaged Property in any material respect or
(C) any improvement forming part of such Mortgaged Property is in material
violation of applicable zoning laws or ordinances.
(li) The Representing Party has no actual knowledge that any of
the following statements was untrue of the related Mortgaged Property at
origination (i) the Mortgaged Property was located on or adjacent to a
public road, or had access to an irrevocable easement permitting ingress
and egress, (ii) the Mortgaged Property was served by public utilities,
water and sewer (or septic facilities), (iii) the Mortgaged Property was a
separate tax parcel and (iv) the Mortgaged Property had parking to the
extent, if any, required under applicable law.
(lii) Such Mortgage Loan was originated by the Representing
Party, an affiliate of the Representing Party, a predecessor in interest
to the Representing Party or an originator approved by the Representing
Party, such an affiliate or such a predecessor in interest, and such
Mortgage Loan was underwritten consistent in all material respects with
the standards of the Person originating such Mortgage Loan.
(liii) No Mortgage Loan contains a provision for any defeasance
of mortgage collateral.
(liv) In selecting the Mortgage Loans for sale, no selection
procedure was employed by the Representing Party which was intended to
adversely affect the interests of the Certificateholders.
(lv) 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 (any of the foregoing, including the Representing
Party, a "Qualified Originator"); 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.
(lvi) With respect to each Mortgage Loan originated by a Person
that is not a Qualified Originator (a "Non-Qualified Originator"):
(A) such Mortgage Loan was underwritten in accordance with
standards established by the Qualified Originator (which
standards were the same as the Qualified Originator's in all
material respects), using application forms and related credit
documents approved by the Qualified Originator;
(B) the Qualified Originator approved each application and related
credit documents before a commitment by the Non-Qualified
Originator was issued, and no such commitment was issued until
the Qualified Originator agreed to fund such Mortgage Loan;
(C) the Mortgage Loan was originated by the Non-Qualified
Originator pursuant to an ongoing, standing relationship with
the Qualified Originator;
(D) the closing documents for the Mortgage Loan were prepared on
forms approved by the Qualified Originator, and, pursuant to
the Non-Qualified Originator's ongoing, standing relationship
with the Qualified Originator, either:
(i) such closing documents reflect the Qualified Originator
as the original mortgagee, and such Mortgage Loan was
actually funded by the Qualified Originator at the
closing thereof;
(ii) such closing documents reflect the Non-Qualified
Originator as the original mortgagee, but include
assignment documents executed by the Non-Qualified
Originator in favor of the Qualified Originator at the
time of the closing of the Mortgage Loan, reflecting the
Qualified Originator as the successor and assign to the
Non-Qualified Originator, and the Mortgage Loan was
funded initially by the Non-Qualified Originator at the
closing thereof and then acquired by the Qualified
Originator from such Non-Qualified Originator; or
(iii) such closing documents reflect the Non-Qualified
Originator as the original mortgagee, but include
assignment documents executed by the Non-Qualified
Originator in favor of the Qualified Originator at the
time of the closing of the Mortgage Loan, reflecting the
Qualified Originator as the successor and assign to the
Non-Qualified Originator, and the Mortgage Loan was
funded initially by the Qualified Originator at the
closing thereof and then acquired by the Qualified
Originator from such Non-Qualified Originator.
(lvii) The related loan documents do not contain any option
which, if exercised, would cause the Mortgage Loan to fail to qualify as a
"qualified mortgage" within the meaning of Section 860G(a)(3) of the Code.
(lviii) No holder of such Mortgage Loan has 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,
including taxes.
(lix) Except as indicated on Schedule XVI with respect to junior
liens, 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, or prior to, the lien of the related
Mortgage without the prior written consent of the holder thereof.
Conduit Mortgage Loan Representations
The Mortgage Loan Seller hereby represents and warrants (and,
accordingly, is the "Representing Party" with respect to each representation or
warranty so made) with respect to each Conduit Mortgage Loan, to the other
parties hereto and for the benefit of the Certificateholders, as of the date
specified in such representation and warranty or, if no such date is specified,
as of the Original Closing Date that:
(i) Immediately prior to the transfer thereof by the
Representing Party or the NB Owner Trust to the Trustee, the Representing
Party or the NB Owner Trust, as the case may be, 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.
(ii) The Representing Party or the NB Owner Trust, as the case
may be, had full right and authority to sell, assign and transfer such
Mortgage Loan to the Trustee.
(iii) The information pertaining to such Mortgage Loan set
forth in the Mortgage Loan Schedule was true, complete 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.
Such non-delinquent status with respect to principal and/or interest is
not due to any advance made by the Representing Party or the NB Owner
Trust.
(v) Except as indicated on Schedule XVII, each Mortgage
securing such Mortgage Loan was recorded in the applicable jurisdiction
with respect to the full amount of the Mortgage Loan and 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. A UCC Financing Statement has been filed
and/or recorded in all places necessary to permit a valid security
interest in the personal property granted under such Mortgage; any
security agreement, chattel mortgage or equivalent document related to and
delivered in connection with the Mortgage Loan establishes and creates a
valid and enforceable first lien and first priority security interest on
the property described therein (except as enforceability may be limited by
bankruptcy or other laws affecting creditor's rights generally or by the
application of general principles of equity). In the case of each Mortgage
Loan secured by a Mortgaged Property that is operated as a hotel, the
related loan documents contain such provisions as are necessary, and UCC
Financing Statements have been filed as necessary, in each case to perfect
a valid security interest in the hotel revenues with respect to such
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 or, to the knowledge of the Representing Party, a title company
qualified to issue title insurance in the relevant jurisdiction, 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 binding commitment for title
insurance "marked-up" at the closing of such loan. The Representing Party
or its successors or assigns are the sole named insureds of such policy,
all premiums due thereunder have been paid, such policy is in full force
and effect, no claims have been made under such policy, and the
Representing Party has no knowledge of any matter which would impair or
diminish the coverage of such policy. Such policy contains no exclusion
for or affirmatively insures access to a public road.
(vii) Neither the Representing Party nor the NB Owner Trust
has 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 no actual knowledge (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) Such Mortgage Loan and the actions by or on behalf of the
Representing Party complied in all material respects with all requirements
of federal, state and local laws, including, without limitation, laws
pertaining to usury and relating to the origination, funding and servicing
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) As regards matters of insurance:
A. if the related Mortgaged Property is a commercial property, it
is insured by (1) a fire and extended perils insurance policy,
issued by an insurer meeting the requirements of such Mortgage
Loan in an amount, with no deductions for depreciation, not
less than the greater of (a) the replacement cost and (b) the
amount necessary to avoid the operation of any co-insurance
provisions with respect to such Mortgaged Property, (2) except
if such Mortgaged Property is operated as a mobile home park,
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), (3) comprehensive general liability insurance
coverage, covering at least $1,000,000 per occurrence, and (4)
except in the case of Mortgage Loans originated by Bank of
America NT&SA or as permitted by the Representing Party's
underwriting guidelines, broad form boiler and machinery
insurance.
B. If the related Mortgaged Property is a multifamily property,
it is insured by (1) a fire and extended perils insurance
policy, issued by an insurer meeting the requirements of such
Mortgage Loan and covering rent loss (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), (2) comprehensive
general liability insurance coverage, covering at least
$1,000,000 per occurrence, and (3) other insurance covering
such other hazards, casualties, liabilities and contingencies
as required by the holder of the Mortgage Loan and in such
amounts and for such periods as required by the holder of the
Mortgage Loan.
C. 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).
D. With respect to all policies, (1) 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; (2) at least ten 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
holder of the Mortgage Loan; (3) all premiums required to be
paid on such policy have been paid; and (4) 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.
(xiv) Except as indicated on Schedule XVIII, 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
since January 1, 1998, 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). Where such assessments
disclosed the existence of such a material condition or circumstance
affecting a Mortgaged Property and recommended that action be taken, (i) a
party not related to the related Mortgagor was identified as the
responsible party for such condition or circumstance, or (ii) the related
Mortgagor was required to obtain an operations and maintenance plan, or
(iii) funds sufficient to effect such action were escrowed, in each case
consistent with any such recommendation and in accordance with the
underwriting standards of the Representing Party. Each Mortgage requires
the related Mortgagor to comply with and to cause the related Mortgaged
Property to be in compliance with all applicable federal, state and local
environmental laws and regulations.
(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) 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, except as specifically disclosed in the related Mortgage
File.
(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 all the
real property constituting a part of the Mortgaged Property.
(xix) Such Mortgage Loan is a whole loan and not a
participation interest.
(xx) The assignment of the related Mortgage to the Trustee is
in recordable form and 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), and all the Depositor's, the NB Owner
Trust's and the Representing Party's rights with respect thereto are
conveyed hereunder.
(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 equal or 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. Any non-conformity with zoning laws constitutes a
legal non-conforming use or structure which, in the event of casualty or
destruction, may be restored or repaired to substantially the full extent
of the use or structure at the time of such casualty or destruction, or
for which law and ordinance insurance coverage has been obtained in
amounts customarily required by prudent commercial mortgage lenders in
similar circumstances.
(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 no actual knowledge of any event (other than
payments due but not yet delinquent) that, with the passage of time or
with notice and the expiration of any grace or cure period, would
constitute such a material default, breach or event of acceleration;
provided, however, that this representation and warranty does not cover
any default, breach or event of acceleration that specifically pertains to
any matter otherwise covered by or disclosed in any other representation
and warranty made by the Representing Party with respect to the Conduit
Mortgage Loans in this Section 2.05(b).
(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,
or provide for interest only payments without any principal amortization.
(xxviii) No holder of such Mortgage Loan has 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,
including taxes.
(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 conduit Mortgage Loan
Representations (v) and (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) The Representing Party or the originator of such
Mortgage Loan inspected, or caused to be inspected, the related Mortgaged
Property in connection with the origination of the Mortgage Loan.
(xxxiii) No fraud with respect to such Mortgage Loan has taken
place on the part of the Representing Party or, to the knowledge of the
Representing Party, any originator, 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 payment due under the related leases.
(xxxviii) [Reserved].
(xxxix) 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.
(xl) In the event fraud or intentional misrepresentation,
misapplication of sale proceeds, insurance proceeds, condemnation
proceeds, rents and profits or other sums received by the Mortgagor in its
capacity as the owner of the Mortgaged Property, or any violation of the
environmental covenants contained in the related loan documents was
committed by the Mortgagor in connection with the origination of a
Mortgage Loan, such Mortgage Loan becomes a recourse obligation of a
principal of the Mortgagor with respect to any damages resulting
therefrom, unless such Mortgage Loan is a Mortgage Loan as to which such
recourse was not required due to the incorporation of other terms under
the underwriting guidelines of the Mortgage Loan Seller, such as a higher
debt service coverage ratio or a lower loan-to-value ratio.
(xli) As of the Original Closing Date, the related Mortgagor
or any guarantor was not, to the best of the Representing Party's actual
knowledge, a debtor in any state or federal bankruptcy or insolvency
proceeding.
(xlii) 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
Cash Flow sufficient to service the Mortgage Loan.
(xliii) Except as indicated on Schedule XIX, if such Mortgage
Loan had a Cut-off Date Balance greater than 1% of the Initial Pool
Balance, then the related Mortgagor has covenanted in its organizational
documents (or its organizational documents otherwise provide for it) to
own no significant asset other than the related Mortgaged Property,
Mortgaged Properties securing other Mortgage Loans and assets incidental
to the ownership and operation of such Mortgaged Property or Properties.
In addition, if such Mortgage Loan had a Cut-off Date Balance greater than
1% of the Initial Pool Balance, the related Mortgagor has covenanted in
its organizational documents and/or the Mortgage Loan documents to be (for
so long as such Mortgage Loan is outstanding) a Single-Purpose Entity.
Neither the Representing Party nor the NB Owner Trust has waived such
covenants and has no knowledge that any such Mortgagor is not in
compliance therewith.
(xliv) 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 paragraph (liii) of this
Section 2.05(b).
(xlv) 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, or prior to, the lien of the
related Mortgage without the prior written consent of the holder thereof.
(xlvi) 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 and, 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 federal laws and 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) Except as indicated on Schedule XX, 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 no actual
knowledge 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, the Representing Party has no actual
knowledge 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.
(xlvii) [Reserved].
(xlviii) 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 or lesser priority with, the
Mortgage. Except as indicated on Schedule XXI, the Ground
Lease is, and provides that it shall remain, prior to any
Mortgage or other lien upon the related fee interest;
(C) Except as indicated on Schedule XXII, 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, and the ground lease permits the interest of the
lessee thereunder to be encumbered by the related Mortgage.
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 in writing prior to the
Original Closing Date) or, 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;
(G) 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;
(H) All rights of the mortgagee under such Mortgage Loan under
such Ground Lease and the related Mortgage (insofar as it
relates to the Ground Lease) may be exercised by or on behalf
of such mortgagee;
(I) Such Ground Lease does not impose any restrictions on
subletting which would be viewed as commercially unreasonable
by an institutional investor; and the lessor thereunder is not
permitted to disturb the possession, interest or quiet
enjoyment of any subtenant of the lessee in the relevant
portion of the related Mortgaged Property subject to such
Ground Lease for any reason, or in any manner, which would
materially and adversely affect the security provided by the
related Mortgage;
(J) Except as indicated on Schedule XXIII, such Ground Lease does
not permit any increase in the amount of rent payable by the
lessee thereunder during the term of the Mortgage Loan;
(K) 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;
(L) 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; and
(M) 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.
(xlix) 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 (any of the foregoing, including the
Representing Party, a "Qualified Originator"); each Mortgaged Property
consists of one or more separate tax 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.
(l) With respect to each Mortgage Loan originated by a Person
that is not a Qualified Originator (a "Non-Qualified Originator"):
(A) such Mortgage Loan was underwritten in accordance with
standards established by the Qualified Originator (which
standards are the same as the Representing Party's in all
material respects), using application forms and related credit
documents approved by the Qualified Originator;
(B) the Qualified Originator approved each application and related
credit documents before a commitment by the Non-Qualified
Originator was issued, and no such commitment was issued until
the Qualified Originator agreed to fund such Mortgage Loan;
(C) the Mortgage Loan was originated by the Non-Qualified
Originator pursuant to an ongoing, standing relationship with
the Qualified Originator;
(D) the closing documents for the Mortgage Loan were prepared on
forms approved by the Qualified Originator, and, pursuant to
the Non-Qualified Originator's ongoing, standing relationship
with the Qualified Originator, and either:
(i) such closing documents reflect the Qualified Originator
as the original mortgagee, and such Mortgage Loan was
actually funded by the Qualified Originator at the
closing thereof;
(ii) such closing documents reflect the Non-Qualified
Originator as the original mortgagee, but include
assignment documents executed by the Non-Qualified
Originator in favor of the Qualified Originator at the
time of the closing of the Mortgage Loan, reflecting the
Qualified Originator as the successor and assign to the
Non-Qualified Originator, and the Mortgage Loan was
funded initially by the Non-Qualified Originator at the
closing thereof and then acquired by the Qualified
Originator from such Non-Qualified Originator; or
(iii) such closing documents reflect the Non-Qualified
Originator as the original mortgagee, but include
assignment documents executed by the Non-Qualified
Originator in favor of the Qualified Originator at the
time of the closing of the Mortgage Loan, reflecting the
Qualified Originator as the successor and assign to the
Non-Qualified Originator, and the Mortgage Loan was
funded initially by the Qualified Originator at the
closing thereof and then acquired by the Qualified
Originator from such Non-Qualified Originator.
(li) (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).
(lii) 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).
(liii) If such Mortgage Loan contains a provision for any
defeasance of mortgage collateral, such Mortgage Loan permits defeasance
(1) no earlier than two years after the Original Closing Date, (2) only
with substitute collateral constituting "government securities" within the
meaning of Treasury Regulations Section 1.860G-2(a)(8)(i) in an amount
sufficient to make all scheduled payments under the Mortgage Note and (3)
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. In addition, if such Mortgage contains
such a defeasance provision, it provides (or otherwise contains provisions
pursuant to which the holder can require) that the loan be assumed by a
Single-Purpose Entity designated by the holder of the Mortgage Loan and
that an opinion be provided to the effect that such holder has a first
priority perfected security interest in the defeasance collateral. The
related mortgage loan documents enable the lender to charge the expenses
associated with permitting a defeasance to the Mortgagor.
(liv) Under the terms of the related Mortgage, any insurance
proceeds or condemnation award with respect to the Mortgaged Property will
be applied (subject to applicable law) 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.
(lv) 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.
(lvi) No claims have been made under any title insurance
policy, the Representing Party has not taken any action which would
materially impair such policy, and to the Representing Party's actual
knowledge, no other person has taken any action which would materially
impair such policy.
(lvii) Each Mortgage Loan originated by the Representing Party
or by one of its approved originators was underwritten consistent in all
material respects with the standards of the Representing Party as then in
effect.
(lviii) 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.
(lix) Except to the extent releases are required or expressly
contemplated by the related Mortgage Loan documents or in a writing
contained in the related Mortgage File, the Representing Party has not
satisfied, canceled, rescinded or subordinated the Mortgage in whole or in
part, released the Mortgaged Property in whole or in part from the lien of
the Mortgage, or executed any instrument that would effect any such
satisfaction, cancellation, rescission, subordination or release.
(lx) Except as indicated on Schedule XXIV, each Mortgage
contains a "due on sale" clause which expressly or effectively provides
for the acceleration of the payment of the unpaid principal balance and
accrued interest of the related Mortgage Loan if, without the prior
written consent of the holder of such Mortgage, the related Mortgaged
Property, or any interest therein, is directly or indirectly transferred
or sold (other than by reason of family and estate planning transfers and
transfers of less than a controlling interest in a Mortgagor, or a
substitution or release of collateral within the parameters of paragraph
(xliv) above).
(lxi) Such Mortgage Loan requires the related Mortgagor to
provide annual operating statements and rent rolls.
(lxii) The Mortgage Loan Seller took no action in selecting
such Mortgage Loans for sale to the Depositor which to the Mortgage Loan
Seller's knowledge would result in delinquencies and losses on the
Mortgage Loans being materially in excess of delinquencies and losses on
the Mortgage Loan Seller's actual portfolio of commercial mortgage loans.
(c) It is understood and agreed that the representations and
warranties set forth in this Section 2.05 shall survive delivery of the
respective Mortgage Files to the Trustee or a Custodian on its behalf and shall
inure to the benefit of the Persons for whose benefit they were made for so long
as the Trust remains in existence, notwithstanding any restrictive or qualified
endorsement or assignment. Upon discovery by any of the parties hereto of a
breach of any of the representations and warranties set forth in subsection (a)
above which materially and adversely affects the interests of the
Certificateholders or any party hereto or a breach of any of the representations
and warranties set forth in subsection (b) above which materially and adversely
affects the value of any Mortgage Loan or the interests therein of the
Certificateholders, the party discovering such breach shall give prompt written
notice to each of the other parties hereto and each Rating Agency.
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, the First Sequel Closing Date and the Second Sequel Closing Date
unless otherwise stated below, that:
(i) The Master Servicer is duly organized, validly existing and
in good standing as a limited liability company 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 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, the First Sequel Closing Date and the Second Sequel Closing Date,
that:
(i) The Special Servicer is duly organized, validly existing and
in good standing as a limited liability company under the laws of the
State of Delaware, 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 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, the First Sequel
Closing Date and the Second 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 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-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 the Trustee for
the benefit of REMIC II to receive distributions from the proceeds of REMIC I
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 Class R-II Certificates, the REMIC III Regular Interests, the
Class R-III Certificates, the REMIC IIIU Uncertificated Regular Interests, the
Class R-IIIU Certificates and the Class REMIC IV Certificates. The Trustee
acknowledges the assignment to it of the REMIC I Regular Interests and declares
that it holds and will hold the same in trust for the exclusive use and benefit
of all present and future Holders of the REMIC II Regular Interests, the Class
R-II Certificates, the REMIC III Regular Interests, the Class R-III
Certificates, the REMIC IIIU Uncertificated Regular Interests, the Class R-IIIU
Certificate and the REMIC IV 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 First Sequel Closing
date, the Class MA-1, Class MA-2 and Class MX Uncertificated Interests have been
issued to the Depositor in exchange for the Certificates designated as the Class
A-1, Class A-2 and Class X Certificates under the Original Pooling Agreement. As
of the Second Sequel Closing Date, the Class MA-3, Class MA-4, Class MA-5, Class
MA-1C, Class MA-2C and Class MB Uncertificated Interests have been issued to the
Depositor in exchange for the Certificates designated as the Class A-3, Class
A-4, Class A-5, Class A-1C, Class A-2C and Class B Certificates under the
Original Pooling Agreement and the First Amended Pooling Agreement. 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 Class R-II Certificateholders, the Holders of the Unaffected REMIC II
Certificates and the Trustee for the benefit of REMIC III, REMIC IIIU and REMIC
IV to receive distributions from the proceeds of REMIC II shall be as set forth
in this Agreement.
SECTION 2.12 Conveyance of the Class MA-1, Class MA-2 and Class MX
Uncertificated Interests; Acceptance of such Interests by the Trustee.
The Depositor, as of the First Sequel Closing Date, and concurrently
with the execution and delivery of the First Amended Pooling Agreement, assigned
without recourse all the right, title and interests of the Depositor in and to
the Class MA-1, Class MA-2 and Class MX Uncertificated Interests to the Trustee
for the benefit of the Holders of the REMIC III Regular Interests, the Class
R-III Certificates the REMIC IIIU Uncertificated Regular Interests, the Class
R-IIIU Certificates and the REMIC IV Certificates. The Trustee acknowledges the
assignment to it of the Class MA-1, Class MA-2 and Class MX Uncertificated
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
Regular Interests, the Class R-III Certificates, the REMIC IIIU Uncertificated
Regular Interests, the Class R-IIIU Certificates and the REMIC IV Certificates.
SECTION 2.13 Issuance of the Class R-III Certificates;
Creation of the REMIC III Regular Interests.
Concurrently with the assignment to the Trustee of the Class MA-1,
Class MA-2 and Class MX Uncertificated Interests, and in exchange therefor, at
the direction of the Depositor, the Trustee has, as of the First Sequel Closing
Date, executed, authenticated and delivered to or upon the order of the
Depositor, the certificates designated as the Class X Certificates under the
First Amended Pooling Agreement and the Unaffected REMIC III Certificates in
authorized denominations evidencing the entire beneficial ownership of REMIC
III. As of the Second Sequel Closing Date, the Class UX Uncertificated Interest
has been issued to the Depositor in exchange for such class of certificates
designated as the "Class X" Certificate under the First Amended Pooling
Agreement. The interests evidenced by the Class R-III Certificates, together
with the Unaffected REMIC III Certificates and the REMIC III Uncertificated
Regular Interest, constitute the entire beneficial ownership of REMIC III. The
rights of the Class R-III Certificateholders, the Holders of the Unaffected
REMIC III Certificates and the Trustee for the benefit of REMIC IV to receive
distributions from the proceeds of REMIC III shall be as set forth in this
Agreement.
SECTION 2.14 Conveyance of the Class MA-3, Class MA-4,
Class MA-5, Class MA-1C and Class MA-2C
Uncertificated Interests; Acceptance of such
Interests by the Trustee.
The Depositor, as of the Second Sequel Closing Date, and
concurrently with the execution and delivery hereof, does hereby assign without
recourse all right, title and interest of the Depositor in and to the Class
MA-3, Class MA-4, Class MA-5, Class MA-1C and Class MA-2C Uncertificated
Interests to the Trustee for the benefit of the Holders of the REMIC IIIU
Uncertificated Regular Interests, the Class R-IIIU Certificates and the REMIC IV
Certificates. The Trustee acknowledges the assignment to it of the Class MA-3,
Class MA-4, Class MA-5, Class MA-1C and Class MA-2C Uncertificated 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 IIIU Uncertificated
Regular Interests, the Class R-IIIU Certificates and the REMIC IV Certificates.
SECTION 2.15 Issuance of the Class R-IIIU Certificates;
Creation of the REMIC IIIU Uncertificated Regular
Interests.
Concurrently with the assignment to the Trustee of the assets
included in REMIC IIIU, and in exchange therefor, at the direction of the
Depositor, the REMIC IIIU Uncertificated Regular Interests have been issued as
of the Second Sequel Closing Date and the Trustee has executed, authenticated
and delivered to or upon the order of the Depositor, the Class R-IIIU
Certificates in authorized denominations. The interests evidenced by the REMIC
IIIU Uncertificated Regular Interests and the Class R-IIIU Certificates
constitute the entire beneficial ownership of REMIC IIIU. The rights of the
REMIC IV Certificates to receive distributions from the proceeds of REMIC IIIU
shall be as set forth in this Agreement.
SECTION 2.16 Conveyance of the Class UA-2, Class UA-3,
Class UA-4, Class UA-1C, Class UA-2C, Class UX and
Class MB Uncertificated Interests; Acceptance of
such Interests by the Trustee.
The Depositor, as of the Second Sequel Closing Date, and
concurrently with the execution and delivery hereof, does hereby assign without
recourse all right, title and interest of the Depositor in and to the Class
UA-2, Class UA-3, Class UA-4, Class UA-1C, Class UA-2C, Class UX and Class MB
Uncertificated Interests to the Trustee for the benefit of the Holders of the
REMIC IV Certificates. The Trustee acknowledges the assignment to it of the
Class UA-2, Class UA-3, Class UA-4, Class UA-1C, Class UA-2C, Class UX and Class
MB Uncertificated 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 IV Certificates.
SECTION 2.17 Issuance of the REMIC IV Certificates.
Concurrently with the assignment to the Trustee of the assets
included in REMIC IV, and in exchange therefor, at the direction of the
Depositor, the REMIC IV Certificates have been issued as of the Second Sequel
Closing Date and the Trustee has executed, authenticated and delivered to or
upon the order of the Depositor, the Class R-IV Certificates in authorized
denominations. The interests evidenced by the REMIC IV Certificates constitute
the entire beneficial ownership of REMIC IV. The rights of the REMIC IV
Certificates to receive distributions from the proceeds of REMIC IV 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; Servicing Advances; 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), except for an
Emergency Advance, subject to Section 3.19(d), 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, the REMIC III
Distribution Account, the REMIC IIIU Distribution
Account and the REMIC IV 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);
(viii) any amounts representing payments made by Mortgagors that
are allocable to cover items in respect of which Servicing Advances have
been made; and
(ix) any proceeds from the repurchase of Mortgage Loans by the
Mortgage Loan Seller under Section 2.03 of this Agreement.
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
(vi) 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 Trust as holder of the REMIC I Regular Interests and the REMIC II
Uncertificated Regular Interests, the REMIC III Uncertificated Regular
Interests, the REMIC IIIU 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, as a sub-account of the Distribution Account, in the name
of the Trustee, in trust for the benefit of the Trust as holder of the REMIC II
Uncertificated Regular Interests, the REMIC III Uncertificated Regular Interest,
the REMIC IIIU Uncertificated Regular Interests and the Certificateholders
(other than the Class R-I Certificateholders). The REMIC II Distribution Account
shall be established and maintained as an Eligible Account. With respect to each
Distribution Date, the Trustee shall be deemed to (i) withdraw from the
Distribution Account and shall be deemed to deposit in the REMIC II Distribution
Account on or before such date the amount of the Available Distribution Amount
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 and (ii) to withdraw from the REMIC II Distribution Account and distribute
to the Holders of the Unaffected REMIC II Certificates and the Class R-II
Certificate on such Distribution Date the portion of the Available Distribution
Amount and the Prepayment Premiums to be distributed in respect thereof pursuant
to Section 4.01(a)(iv), Section 4.01(b) and Section 4.01(c)(i) on such date.
(d) The Trustee shall establish and maintain the REMIC III
Distribution Account, as a sub-account of the Distribution Account, in the name
of the Trustee, in trust for the benefit of the Trust as holder of REMIC III
Uncertificated Regular Interest, the REMIC IIIU Uncertificated Regular Interests
and the Certificateholders (other than the Class R-I and Class R-II Certificate
holders). The REMIC III Distribution Account shall be established and maintained
as an Eligible Account. With respect to each Distribution Date, the Trustee
shall be deemed (i) to withdraw from the REMIC II Distribution Account and shall
be deemed to deposit in the REMIC III Distribution Account on such date the
portion of the Available Distribution Amount and the Prepayment Premiums to be
distributed in respect of the Class MA-1, Class MA-2 and Class MX Uncertificated
Interests, respectively, pursuant to Section 4.01(a)(ii) and Section 4.01(c)(ii)
hereof on such date and (ii) to withdraw from the REMIC III Distribution Account
and distribute to the holders of the Unaffected REMIC III Certificates and the
Class R-III Certificates on such Distribution Date that portion of the Available
Distribution Amount and the Prepayment Premiums to be distributed in respect
thereof pursuant to Section 4.01(a)(v), Section 4.01(b) and Section 4.01(c)(i)
on such date.
(e) The Trustee shall establish and maintain the REMIC IIIU
Distribution Account, as a sub-account of the Distribution Account, in the name
of the Trustee, in trust for the benefit of the Trust as holder of the REMIC
IIIU Uncertificated Regular Interests and the Certificateholders (other than the
Class R-I, Class R-II and Class R-IIIU Certificateholders. The REMIC IIIU
Distribution Account shall be established and maintained as an Eligible Account.
With respect to each Distribution Date, the Trustee shall be deemed (i) to
withdraw from the REMIC II Distribution Account and shall be deemed to deposit
in the REMIC IIIU Distribution Account on such date the portion of the Available
Distribution Amount and the Prepayment Premiums to be distributed in respect of
the Class MA-3, Class MA-4, Class MA-5, Class MA-1C and Class MA-2C
Uncertificated Interests, respectively, pursuant to Section 4.01(a)(ii) and
Section 4.01(c)(ii) hereof on such date and (ii) to withdraw from the REMIC IIIU
Distribution Account and distribute to the holders of the Class R-IIIU
Certificates on such Distribution Date the portion of the Available Distribution
Amount to be distributed in respect thereof pursuant to Section 4.01(a)(vi) on
such date.
(f) The Trustee shall establish and maintain the REMIC IV
Distribution Account, as a sub-account of the Distribution Account, in the name
of the Trustee, in trust for the benefit of the Holders of the REMIC IV
Certificates. The REMIC IV Distribution Account shall be established and
maintained as an Eligible Account. With respect to each Distribution Date, the
Trustee shall be deemed (i) to withdraw from the REMIC IIIU Distribution Account
and shall be deemed to deposit in the REMIC IV Distribution Account on such date
the portion of the Available Distribution Amount and the Prepayment Premiums to
be distributed in respect of the Class UA-2, Class UA-3, Class UA-4, Class UA-1C
and Class UA-2C Uncertificated Interests, respectively, pursuant to Section
4.01(a)(ii) and Section 4.01(c)(ii) hereof on such date, and (ii) to withdraw
from the REMIC III Distribution Account and shall be deemed to deposit in the
REMIC IV Distribution Account on such date the portion of the Available
Distribution Amount and the Prepayment Premiums to be distributed in respect of
the Class UX Uncertificated Interest pursuant to Section 4.01(a)(ii) and Section
4.01(c)(ii) hereof on such date and (iii) to withdraw from the REMIC II
Distribution Account and shall be deemed to deposit in the REMIC IV Distribution
Account on such date the portion of the Available Distribution Amount and the
Prepayment Premiums to be distributed in respect of the Class MB Uncertificated
Interest pursuant to Section 4.01(a)(ii) and Section 4.01(c)(ii) hereof on such
date.
(g) Funds in the Certificate Account may be invested only 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, the REMIC III Distribution Account,
the REMIC IIIU Distribution Account and the REMIC IV Distribution Account shall
be established at the Corporate Trust Office of the Trustee as of (i) the
Original Closing Date, in the case of the Distribution Account and the REMIC II
Distribution Account, (ii) the First Sequel Closing Date in the case of the
REMIC III Distribution Account and (iii) the Second Sequel Closing Date, in the
case of the REMIC IIIU Distribution Account and the REMIC IV Distribution
Account. 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 (but not the Special Servicer's Standby
Fee), 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, and to pay
the Standby Fee to the Special Servicer out of the Master Servicing Fee
with respect to such Mortgage Loan (or paid as an Advance if such Master
Servicing Fee is insufficient);
(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 and Advance Interest at the Reimbursement Rate made thereby with
respect to any Mortgage Loan, REO Loan or REO Property that have been
determined to be Nonrecoverable Advances;
(viii) to pay the Trustee, the Special Servicer or the Master
Servicer, as applicable, in that order, any Advance Interest due and owing
thereto, the Trustee's, the Special Servicer's and the Master Servicer's
respective rights to payment pursuant to this clause (viii) being payable
from, and limited to, Default Charges collected in respect of the Mortgage
Loan or REO Loan as to which the related Advances were made (but only to
the extent allocable to the period when such Mortgage Loan was a Specially
Serviced Mortgage Loan or an REO Loan);
(ix) at or following such time as the Master Servicer reimburses
itself, the Special Servicer or the Trustee, as applicable, for any
unreimbursed Advance pursuant to clause (ii), (vi) or (vii) above or
Section 3.03, and insofar as payment has not already been made pursuant to
clause (viii) above, to pay the Trustee, the Special Servicer or the
Master Servicer, as the case may be, and in that order, out of general
collections on the Mortgage Loans and any REO Properties, any related
Advance Interest accrued and payable on such Advance;
(x) to pay the Master Servicer, as additional servicing
compensation in accordance with Sections 3.06(b) and 3.11(b), any Net
Investment Earnings in respect of amounts held in the Certificate Account
for any Collection Period;
(xi) to pay the Master Servicer, as additional servicing
compensation in accordance with Section 3.11(b), any Prepayment Interest
Excesses and, to the extent not allocable to the period that any Mortgage
Loan is a Specially Serviced Mortgage Loan or REO Loan, any Default
Charges collected on the Mortgage Loans, and to pay the Special Servicer,
as additional servicing compensation in accordance with Section 3.11(d),
any Net Default Charges collected on any Mortgage Loan to the extent
allocable to the period that such Mortgage Loan is a Specially Serviced
Mortgage Loan or REO Loan;
(xii) to reimburse, out of general collections on the Mortgage
Loans and any REO Properties, the Master Servicer, the Special Servicer,
the REMIC Administrator, the Depositor, or any of their respective
directors, officers, employees and agents any amounts reimbursable to any
such Person pursuant to Section 6.03, or to pay directly to any third
party any amount which if paid by any such Person would be reimbursable
thereto pursuant to Section 6.03;
(xiii) to pay, out of general collections on the Mortgage Loans
and any REO Properties, for (A) the reasonable costs of the advice of
counsel contemplated by Section 3.17(a), (B) the reasonable costs of the
Opinions of Counsel contemplated by Sections 3.09(b)(ii) and 3.16(a), (C)
the reasonable costs of Appraisals obtained pursuant to Section 3.11(g) or
4.03(c), (D) the reasonable costs of obtaining any REO Extension sought by
the Special Servicer as contemplated by Section 3.16(a) and (E) the cost
of recording this Agreement in accordance with Section 11.02(a);
(xiv) to pay itself, the Special Servicer, the Majority
Certificateholder of the Controlling Class, the Mortgage Loan Seller or
any other Person, as the case may be, with respect to each Mortgage Loan,
if any, previously purchased by such Person pursuant to this Agreement,
all amounts received thereon subsequent to the date of purchase;
(xv) to pay the Trustee or any of its respective directors,
officers, employees and agents, as the case may be, any amounts payable or
reimbursable to any such Person pursuant to Section 8.05(b) and Section
8.13;
(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);
(xvii) to remit to the Trustee for deposit in the Interest
Reserve Account the Withheld Amounts required to be deposited pursuant to
Section 4.05; and
(xviii) 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 (xviii)
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), (vii), (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; 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 (ii), (vi), (vii), (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 Section 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, REMIC III, REMIC IIIU or REMIC IV 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 (i) shall be deemed to make withdrawals from the
REMIC II Distribution Account for any of the following purposes: (A) to deposit
into the REMIC III Distribution Account on the related Distribution Date the
portions of the Available Distribution Amount and Prepayment Premiums to be
distributed with respect to the Class MA-1, Class MA-2 and Class MX
Uncertificated Interests on each Distribution Date pursuant to Sections
4.01(a)(ii) and 4.01(c)(ii) or Section 9.01, as applicable, (B) to deposit into
the REMIC IIIU Distribution Account on the related Distribution Date the
portions of the Available Distribution Amount and Prepayment Premiums to be
distributed with respect to the Class MA-3, Class MA-4, Class MA-5, Class MA-1C
and Class MA-2C Uncertificated Interests on each Distribution Date pursuant to
Sections 4.01(a)(ii) and 4.01(c)(ii) or Section 9.01, as applicable, and (C) to
deposit into the REMIC IV Distribution Account on the related Distribution Date
the portions of the Available Distribution Amount and Prepayment Premiums to be
distributed with respect to the Class MB Uncertificated Interest on each
Distribution Date pursuant to Sections 4.01(a)(ii) and 4.01(c)(ii) or Section
9.01, as applicable; and (ii) shall make withdrawals from the REMIC II
Distribution Account for any of the following purposes: (A) to make
distributions to Holders of the Unaffected REMIC II Certificates pursuant to
Section 4.01(b) and Section 4.01(c)(i) or Section 9.01, as applicable, (B) to
make distributions to Holders of the Class R-II Certificates pursuant Section
4.01(a)(iv) or Section 9.01, as applicable, and (C) to clear and terminate the
REMIC II Distribution Account at the termination of this Agreement pursuant to
Section 9.01.
(d) The Trustee (i) shall be deemed to make withdrawals from the
REMIC III Distribution Account for any of the following purposes: (A) to deposit
into the REMIC IV Distribution Account on the related Distribution Date the
portion of the Available Distribution Amount and Prepayment Premiums to be
distributed with respect to the Class UX Uncertificated Interest on each
Distribution Date pursuant to Sections 4.01(a)(ii) and 4.01(c)(ii) or Section
9.01, as applicable; and (ii) shall make withdrawals from the REMIC III
Distribution Account for the following purposes: (A) to make distributions to
the holders of the Unaffected REMIC III Certificates pursuant to Section 4.01(b)
and Section 4.01(c)(i) or Section 9.01, as applicable, (B) to make distributions
to the Holders of the Class R-III Certificates pursuant to Section 4.01(a)(iv)
or Section 9.01, as applicable; and (C) to clear and terminate the REMIC III
Distribution Account at the termination of this Agreement pursuant to Section
9.01.
(e) The Trustee (i) shall be deemed to make withdrawals from the
REMIC IIIU Distribution Account for any of the following purposes (A) to deposit
into the REMIC IV Distribution Account the portion of the Available Distribution
Amount and Prepayment Premiums to be distributed in respect of the REMIC IIIU
Uncertificated Regular Interests on each Distribution Date pursuant to Sections
4.01(a)(ii) and 4.01(c)(ii) or Section 9.01, as applicable; and (ii) shall make
withdrawals from the REMIC IIIU Distribution Account for the following purpose:
and (A) to make distributions to Holders of the Class R-IIIU Certificates
pursuant to Section 4.01(a)(v) or Section 9.01, as applicable, and (B) to clear
and terminate the REMIC IIIU Distribution Account at the termination of this
Agreement pursuant to Section 9.01.
(f) The Trustee (i) shall make withdrawals from the REMIC IV
Distribution Account for any of the following purposes: (A) to make
distributions on the Class A-2, Class A-3, Class A-4, Class A-1C, Class A-2C,
Class B and Class X Certificates on each Distribution Date pursuant to Sections
4.01(b) and 4.01(c)(i) or Section 9.01, as applicable, and (B) to make
distributions to Holders of the Class R-IV Certificates pursuant to Section
4.01(a)(vi) or Section 9.01, as applicable; and (C) to clear and terminate the
REMIC IV 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, and 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") only 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) or 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 Net Investment Earnings, if any, for such Investment Account for
each Collection Period, shall be for the sole and exclusive benefit of the
Trustee and shall be subject to withdrawal by the Trustee. 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), in each case
with an insurer that possesses the Required Claims-Paying Rating at the time
such policy is issued; 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 (A) is obtained from a Qualified Insurer that possesses the
Required Claims-Paying Ratings, and (B) provides protection equivalent to
the individual policies otherwise required, the Master Servicer or the
Special Servicer, as the case may be, shall conclusively be deemed to have
satisfied its obligation to cause hazard insurance to be maintained on the
Mortgaged Properties or REO Properties, as applicable, so covered, and the
premium costs thereof shall be, if and to the extent they are specifically
attributable either to a specific Mortgaged Property during any period
that the related Mortgagor has failed to maintain the hazard insurance
required under the related Mortgage Loan in respect of such Mortgaged
Property or to a specific REO Property, a Servicing Advance reimbursable
pursuant to and to the extent permitted under Section 3.05(a); provided
that, to the extent that such premium costs are attributable to properties
other than Mortgaged Properties and/or REO Properties or are attributable
to Mortgaged Properties as to which the hazard insurance required under
the related Mortgage Loan is being maintained, they shall be borne by the
Master Servicer or Special Servicer, as the case may be, without right of
reimbursement. Such a blanket policy may contain a deductible clause (not
in excess of a customary amount), in which case the Master Servicer or the
Special Servicer, as appropriate, shall, if there shall not have been
maintained on the related Mortgaged Property or REO Property, as
applicable, a hazard insurance policy complying with the requirements of
Section 3.07(a), and there shall have been one or more losses which would
have been covered by such property specific policy (taking into account
any deductible clause that would have been permitted therein), promptly
deposit into the Certificate Account from its own funds (without right of
reimbursement) the amount of such losses up to the difference between the
amount of the deductible clause in such blanket policy and the amount of
any deductible clause that would have been permitted under such property
specific policy. The Master Servicer and the Special Servicer each agree
to prepare and present, on behalf of itself, the Trustee and the
Certificateholders, claims under any such blanket policy maintained by it
in a timely fashion in accordance with the terms of such policy.
(ii) If the Master Servicer shall cause any Mortgaged Property or
the Special Servicer shall cause any REO Property to be covered by a
master single interest insurance policy naming the Master Servicer or the
Special Servicer, as applicable, on behalf of the Trustee as the loss
payee, then to the extent such policy (A) is obtained from a Qualified
Insurer that possesses the Required Claims-Paying Ratings and (B) 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.
(d) All insurance coverage required to be maintained under this
Section 3.07 shall be obtained from Qualified Insurers.
SECTION 3.08 Enforcement of Due-On-Sale Clauses; Assumption
Agreements; Subordinate Financing.
(a) As to each Mortgage Loan which contains a provision in the
nature of a "due-on-sale" clause, which by its terms:
(i) provides that such Mortgage Loan shall (or may at the
mortgagee's option) become due and payable upon the sale or other transfer
of an interest in the related Mortgaged Property or of a controlling
interest in the related Mortgagor; or
(ii) provides that such Mortgage Loan may not be assumed without
the consent of the mortgagee in connection with any such sale or other
transfer, then, for so long as such Mortgage Loan is included in the Trust
Fund, each of the Master Servicer and the Special Servicer shall, on
behalf of the Trustee as the mortgagee of record, as to those Mortgage
Loans it is obligated to service hereunder, exercise (or waive its right
to exercise) any right it may have with respect to such Mortgage Loan (x)
to accelerate the payments thereon, or (y) to withhold its consent to any
such sale or other transfer, in a manner consistent with the Servicing
Standard, but subject to Section 3.20(a)(iii); provided that,
notwithstanding anything to the contrary contained herein, neither the
Master Servicer nor the Special Servicer shall waive any other right it
has, or grant any other consent it is otherwise entitled to withhold,
under any related "due-on-sale" clause (other than in connection with
transfers and assumptions under the Mortgage Loans in which the
obligations of the original recourse parties (including any guarantors) of
the Mortgage Loans are not changed, such as transfers to inter vivos
trusts for tax or estate planning purposes) 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
$20,000,000 or more, or 2% or more of the then current principal balance
of the Mortgage Pool, shall have obtained written confirmation from each
Rating Agency that such action shall not result in a qualification (if
applicable), downgrade or withdrawal of the rating then assigned by such
Rating Agency to any Class of Certificates (provided, however, that such a
confirmation from DCR shall only be required if such principal balance is
2% or more of the then current principal balance of the Mortgage Pool);
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 with respect to any
Mortgage Loan until it has received written confirmation from each Rating Agency
that such action would not result in the downgrade, qualification (if
applicable) 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.
(d) With respect to a request to the Special Servicer from the
Master Servicer for approval for the assumption of a Mortgage Loan that would
not require Rating Agency review, the Special Servicer shall notify the Master
Servicer of its decision within five Business Days of receiving notice (and all
supporting documentation reasonably required by the Special Servicer for its
analysis) from the Master Servicer of the Master Servicer's decision to approve
the assumption.
(e)
(i) The parties to this Agreement mutually acknowledge and agree
that the Mortgage Loan Seller is the lender with respect to both first
lien Mortgage Loans (the "Senior Mortgage Loans") and subordinate lien
Mortgage Loans (the "Junior Mortgage Loans"), both of which are secured by
deeds of trust on the same Mortgaged Properties, for those Mortgage Loans
listed on Schedule XXV and made to the Mortgagors listed on such Schedule
XXV, which Schedule XXV is attached to this Agreement. As used in this
Section 3.08(e), the term "Senior Mortgage Loan Seller" shall mean the
Mortgage Loan Seller in its capacity as lender of the Senior Mortgage
Loans, together with any and all of its successors and assigns, including
without limitation the Trust created hereunder and any servicers of the
Senior Mortgage Loans, and the term "Junior Mortgage Loan Seller" shall
mean the Mortgage Loan Seller in its capacity as lender of the Junior
Mortgage Loans, together with any and all of its successors and assigns,
including without limitation any servicers of the Junior Mortgage Loans.
(ii) The Senior Mortgage Loans shall be transferred to the Trust
pursuant to this Agreement; however, the Junior Mortgage Loans shall not
be so transferred. The Junior Mortgage Loan Seller hereby agrees that any
and all claims, now or hereafter existing, of the Junior Mortgage Loan
Seller with respect to the Junior Mortgage Loans are, and shall be at all
times, subject and subordinate to any and all claims, now or hereafter
existing, which Senior Mortgage Loan Seller may have against the
Mortgagors with respect to the Senior Mortgage Loans (including any claims
by the Senior Mortgage Loan Seller for interest accruing after any
assignments for the benefit of creditors by the Mortgagors or the
institution by or against the Mortgagors of any proceedings under the
Bankruptcy Code, or any claims by the Senior Mortgage Loan Seller for any
such interest which would have accrued in the absence of such assignments
or the institution of such proceedings).
(iii) The Junior Mortgage Loan Seller agrees not to sue upon, or
to collect, or to receive payment of the principal or interest of any
claim or claims now or hereafter existing which the Junior Mortgage Loan
Seller may hold against the Mortgagors arising out of the Junior Mortgage
Loans and not to sell, assign, transfer, pledge, hypothecate, or encumber
such claim or claims except subject expressly to this Section 3.08(e), and
not to enforce or apply any security now or hereafter existing therefor,
nor to file or join in any petitions to commence any proceedings under the
Bankruptcy Code, so long as any claims of the Senior Mortgage Loan Seller
against the Mortgagors shall exist in respect of the Senior Mortgage
Loans.
(iv) In case of any assignments for the benefit of creditors by
the Mortgagors, or in case any proceedings under the Bankruptcy Code are
instituted by or against the Mortgagors, or in case of the appointment of
any receivers for the Mortgagors' businesses or assets, or in case of any
dissolution or winding up of the affairs of the Mortgagors: (a) the
Mortgagors and any assignees, trustees in bankruptcy, receivers, debtors
in possession or other person or persons in charge are hereby directed to
pay to Senior Mortgage Loan Seller the full amount of Senior Mortgage Loan
Seller's claims against the Mortgagors arising out of the Senior Mortgage
Loans (including interest to the date of payment) before making any
payments of principal or interest to the Junior Mortgage Loan Seller on
the Junior Mortgage Loans, and insofar as may be necessary for that
purpose, the Junior Mortgage Loan Seller hereby assigns and transfers to
the Senior Mortgage Loan Seller all security for the Junior Mortgage Loans
or proceeds thereof, and all rights to any payments related thereto, and
(b) the Junior Mortgage Loan Seller hereby irrevocably constitutes and
appoints the Senior Mortgage Loan Seller its true and lawful attorney to
act in its name and stead: (i) to file the appropriate claim or claims on
behalf of the Junior Mortgage Loan Seller if the Junior Mortgage Loan
Seller does not do so prior to thirty (30) days before the expiration of
the time to file claims in such proceedings and if the Senior Mortgage
Loan Seller elects, at its sole discretion, to file such claim or claims
and (ii) to accept or reject any plans or reorganization or arrangements
on behalf of the Junior Mortgage Loan Seller, and to otherwise vote the
Junior Mortgage Loan Seller's claims in respect of any indebtedness now or
hereafter owing from the Mortgagors to the Junior Mortgage Loan Seller
under the Junior Mortgage Loans in any manner the Senior Mortgage Loan
Seller deems appropriate for its own benefit and protection.
(v) The Senior Mortgage Loan Seller is hereby authorized by the
Junior Mortgage Loan Seller to take such actions with respect to the
Senior Mortgage Loans as it deems appropriate, without the involvement of
the Junior Mortgage Loan Seller, including, without limitation: (a) renew,
compromise, extend, accelerate or otherwise change the times of payments,
or any other terms, of any existing or future claims of the Senior
Mortgage Loan Seller against the Mortgagors arising out of the Senior
Mortgage Loans, (b) increase or decrease the rates of interest payable
thereon or any parts thereof, (c) exchange, enforce, waive or release any
security therefor, (d) apply such security and direct the order or manner
of sales thereof in such manner as the Senior Mortgage Loan Seller may at
its discretion determine, (e) release the Mortgagors or any guarantors of
any indebtedness of the Mortgagors from liability arising from the Senior
Mortgage Loans and (f) make optional future advances to the Mortgagors
related to the Senior Mortgage Loans, all without notice to the Junior
Mortgage Loan Seller and without affecting the subordination provided by
this Section 3.08(e).
(vi) The Junior Mortgage Loan Seller shall mark the original of
any promissory notes or other evidences of any existing or future
indebtedness of the Mortgagors to the Junior Mortgage Loan Seller with
respect to the Junior Mortgage Loans with a conspicuous legend which reads
substantially as follows:
"THIS PROMISSORY NOTE IS SUBORDINATED TO ANY PRESENT OR FUTURE
INDEBTEDNESS OWING FROM THE MAKER TO BANK OF AMERICA, N.A. AND ITS
SUCCESSORS AND ASSIGNS ARISING OUT OF LOAN NO._____________________
DATED _____________ IN THE ORIGINAL PRINCIPAL AMOUNT OF
$_____________. THIS PROMISSORY NOTE MAY BE ENFORCED ONLY IN
ACCORDANCE WITH SECTION 3.08(e) THAT CERTAIN POOLING AND SERVICING
AGREEMENT DATED AS OF AUGUST 1, 1999 EXECUTED BY BANK OF AMERICA,
N.A. AS THE MORTGAGE LOAN SELLER.
(vii) In the event that any payments or any cash or noncash
distributions are made to the Junior Mortgage Loan Seller in violation of
the terms of this Agreement, the Junior Mortgage Loan Seller shall receive
same in trust for the benefit of the Senior Mortgage Loan Seller, and
shall forthwith remit them to the Senior Mortgage Loan Seller in the form
in which they were received, together with such endorsements or documents
as may be necessary to effectively negotiate or transfer same to the
Senior Mortgage Loan Seller.
(viii) For violation of this Section 3.08(e), the Junior Mortgage
Loan Seller shall be liable for all loss and damage sustained by reason of
such breach, and upon any such violation the Senior Mortgage Loan Seller
may, at its option, accelerate the maturity of any of its existing or
future claims against the Mortgagors arising out of the Senior Mortgage
Loans.
(ix) This Section 3.08(e) shall be binding upon the heirs,
successors and assigns of the Junior Mortgage Loan Seller, the Mortgagors
and the Senior Mortgage Loan Seller. This Section 3.08(e) and any existing
or future claims of the Senior Mortgage Loan Seller against the Mortgagors
may be assigned by the Senior Mortgage Loan Seller, in whole or in part,
without notice to the Junior Mortgage Loan Seller or to the Mortgagors.
(x) Notwithstanding the provisions of Section 3.08(e)(iii), so
long as there has been no occurrence of any default under any agreements
between the Mortgagors and the Senior Mortgage Loan Seller, now existing
or hereafter entered into, the Junior Mortgage Loan Seller may receive
regularly scheduled principal and interest payments on the Junior Mortgage
Loans, provided, however, that the Junior Mortgage Loan Seller shall not
receive any prepayments of principal or interest on the said Junior
Mortgage Loans without the prior written consent of the Senior Mortgage
Loan Seller.
(xi) The Senior Mortgage Loan Seller and the Junior Mortgage Loan
Seller hereby agree that, anything to the contrary contained herein or in
the Senior Mortgage Loans or in the Junior Mortgage Loans notwithstanding,
they hereby waive, release and discharge forever any provisions whatsoever
and wheresoever contained in the documents evidencing or securing either
the Senior Mortgage Loans or the Junior Mortgage Loans, or both, which
provide that an event of default under the Senior Mortgage Loans shall
constitute an event of default under the Junior Mortgage Loans, and vice
versa.
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 as contemplated by
Section 3.19(d), subject to the Master Servicer 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, REMIC III, REMIC IIIU or REMIC IV 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 E, 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 Master Servicer, with the assistance of the Special
Servicer, shall file the information returns with respect to the receipt of any
mortgage interest received in a trade or business. The Special Servicer, with
the assistance of the Master Servicer shall file the reports of foreclosures and
abandonments and reports relating to any cancellation of indebtedness income
with respect to any Mortgaged Property required by Section 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 Stated Principal Balance as of the Due Date in the immediately preceding
Collection Period 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.
ORIX 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 ORIX (or any
successor thereto) as Master Servicer, the rights of ORIX 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 ORIX 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 ORIX 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 ORIX under this Agreement. If the
successor Master Servicer shall not have agreed to perform such services for
such lesser amount, the rights of ORIX 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 0.0275% 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), (ii) and (iii) 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;
further provided, however, that in the event the related Sub-Servicer resigns or
the Sub-Servicer or the Sub-Servicing Agreement is terminated, any such
additional compensation shared with such Sub-Servicer shall be instead paid to
and retained by the Master Servicer; further provided that, anything above to
the contrary notwithstanding, with respect to Portfolio Mortgage Loans (while
they are Non-Specially Serviced Mortgage Loans) sub-serviced by the Portfolio
Mortgage Loan Seller, the Portfolio Mortgage Loan Seller will be entitled to 75%
of assumption, modification and extension fees collected and the Master Servicer
will be entitled to the remaining 25% of assumption, modification and extension
fees.
In accordance with this Agreement and the applicable Sub-Servicing
Agreements, 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, or
Servicing Accounts or Reserve Accounts, as applicable, and the Master Servicer
shall not be entitled to reimbursement from the Trust Fund 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 Stated Principal Balance
as of the Due Date in the immediately preceding Collection Period 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 in the same manner as the Master Servicing Fee 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). 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 or by means of a
P&I Advance.
As further compensation for its activities hereunder, the Special
Servicer shall be entitled to receive the Workout Fee with respect to each
Corrected Mortgage Loan, unless the basis on which such Mortgage Loan became a
Corrected Mortgage Loan was the remediation of a circumstance or condition
relating to the Mortgage Loan Seller's obligation to repurchase such Mortgage
Loan pursuant to Section 2.03, in which case, if such Mortgage Loan is
repurchased within the 90-day period (or, if an additional 90-day extension is
permitted under Section 2.03(a), 180-day period) described in Section 2.03(a),
no Workout Fee will be payable from or based upon the receipt of, any Purchase
Price paid by the Mortgage Loan Seller in satisfaction of such repurchase
obligation. Furthermore, no Workout Fees will be payable from or based upon the
receipt of any Liquidation Proceeds paid by any Majority Certificateholder of
the Controlling Class or the Master Servicer in connection with the purchase of
all the Mortgage Loans and any REO Properties in the Trust Fund pursuant to
Section 9.01 hereof. As to each Corrected Mortgage Loan, subject to the
exceptions provided for in the two preceding sentences, the Workout Fee shall be
payable from, and shall be calculated by application of the Workout Fee Rate to,
each collection of interest (other than Default Interest) and principal received
on such Mortgage Loan for so long as it remains a Corrected Mortgage Loan. The
Workout Fee with respect to any Corrected Mortgage Loan will cease to be payable
if a Servicing Transfer Event occurs with respect thereto or if the related
Mortgaged Property becomes an REO Property; provided that a new Workout Fee will
become payable if and when such Mortgage Loan again becomes a Corrected Mortgage
Loan. If the Special Servicer is terminated other than for cause or resigns in
accordance with clause (ii) of the first paragraph of Section 6.04, it shall
retain the right to receive any and all Workout Fees payable in respect of
Mortgage Loans that became Corrected Mortgage Loans during the period that it
acted as Special Servicer and were still such at the time of such termination or
resignation (and the successor Special Servicer shall not be entitled to any
portion of such Workout Fees), in each case until the Workout Fee for any such
Mortgage Loan ceases to be payable in accordance with the preceding sentence.
As further compensation for its activities hereunder, the Special
Servicer shall also be entitled to receive a Liquidation Fee with respect to
each Specially Serviced Mortgage Loan or REO Property as to which it receives
any partial or unscheduled payment, or full or discounted payoff from the
related Mortgagor or any Liquidation Proceeds (other than in connection with the
purchase of any such Specially Serviced Mortgage Loan or REO Property by the
Special Servicer pursuant to Section 3.18, by the Master Servicer or the
Majority Certificateholder of the Controlling Class pursuant to Section 3.18 or
Section 9.01, or by the Mortgage Loan Seller pursuant to Section 2.03 within 90
days (or, if an additional 90-day extension is permitted, 180 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; 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, Default Charges, 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 2000, the Master Servicer or, in the case of any
inspection required to be performed 60 days after delinquency, the Special
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 or equal to or
greater than two percent (2%) of the then current principal balance of the
Mortgage Pool, at least once every year) and 60 days after delinquency, 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) and annually
thereafter so long as it is a Specially Serviced Mortgage Loan. 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 E, 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. If the Master
Servicer fails to obtain required operating statements and/or rent rolls within
thirty (30) days after the required time the Mortgagor is to deliver such
operating statements and/or rent rolls pursuant to the related Mortgage Loan
Documents, or, if the related Mortgage Loan has no such requirements, within
sixty (60) days after the Mortgagor's fiscal year (or any quarter thereof) ends,
the Special Servicer, after consultation with and in cooperation with the Master
Servicer, may communicate with the related Mortgagor in an effort to collect the
uncollected operating statements and rent rolls. 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) subject to Section 4.02(b), prepare
written reports based on such reviews identifying the revenues, expenses, Net
Cash Flow 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 subject to Section 4.02(b), deliver
the written reports prepared in respect thereof, to the Trustee, the Directing
Certificateholder, the Rating Agencies, each other and, upon request of a Class
E, Class F, Class G, Class H, Class J and Class K Certificateholder, such
Holder, in each case within 15 days of its receipt or preparation pursuant to
Section 4.02(b), 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 E, 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 E, 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,
2000, 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, 2000 (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 E, 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, on the basis of such
examination conducted substantially in compliance with generally accepted
auditing standards and the Uniform Single Attestation Program for Mortgage
Bankers, such servicing has been conducted in compliance with similar agreements
except for such significant exceptions or errors in records that, in the opinion
of such firm, generally accepted auditing standards and the Uniform Single
Attestation Program for Mortgage Bankers require it to report, in which case
such exceptions and errors shall be so reported. 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 or REMIC II as defined in Section 860F of the Code or cause REMIC I or REMIC
II to fail to qualify as a REMIC at any time that any Certificates are
outstanding. If the Special Servicer is granted the REO Extension contemplated
by clause (i) of the immediately preceding sentence or obtains the Opinion of
Counsel contemplated by clause (ii) of the immediately preceding sentence, the
Special Servicer shall sell such REO Property within such period longer than
three years following the year that such property was acquired, as is permitted
by such REO Extension or such Opinion of Counsel, as the case may be. Any
reasonable expense incurred by the Special Servicer in connection with its being
granted the REO Extension contemplated by clause (i) of the second preceding
sentence or its obtaining the Opinion of Counsel contemplated by clause (ii) of
the second preceding sentence, shall be an expense of the Trust payable out of
the Certificate Account pursuant to Section 3.05(a). Any REO Extension shall be
requested by the Special Servicer no later than 60 days before the end of the
third calendar year following the year in which the Trust acquired ownership of
the related REO Property.
(b) The Special Servicer shall segregate and hold all funds
collected and received in connection with any REO Property separate and apart
from its own funds and general assets. If an REO Acquisition shall occur, the
Special Servicer shall establish and maintain one or more accounts
(collectively, the "REO Account"), to be held on behalf of the Trustee in trust
for the benefit of the Certificateholders, for the retention of revenues and
other proceeds derived from each REO Property. The REO Account shall be an
Eligible Account and may consist of one account for all the REO Properties. The
Special Servicer shall deposit, or cause to be deposited, in the REO Account,
within two Business Days of receipt, all REO Revenues, Liquidation Proceeds (net
of all Liquidation Expenses paid therefrom) and Insurance Proceeds received in
respect of an REO Property. The Special Servicer is authorized to pay out of
related Liquidation Proceeds any Liquidation Expenses incurred in respect of an
REO Property and outstanding at the time such proceeds are received. Funds in
the REO Account may be invested only 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 second 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, subject to Section 3.19(d), 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; and
(v) the Special Servicer shall be obligated with respect thereto
to the same extent as if it alone were performing all duties and
obligations in connection with the operation and management of such REO
Property.
The Special Servicer shall be entitled to enter into any agreement
with any Independent Contractor performing services for it related to its duties
and obligations hereunder for indemnification of the Special Servicer by such
Independent Contractor, and nothing in this Agreement shall be deemed to limit
or modify such indemnification.
(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 Master
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 Special
Servicer 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 Special Servicer
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 Section
3.19(d), 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 Section 3.19(d)). 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. The Master
Servicer shall verify the accuracy of the mathematical computation of any
Appraisal Reduction Amount determined by the Special Servicer and that the
amounts used therein are consistent with the Master Servicer's records.
(c) The Master Servicer and the Special Servicer shall each deliver
to the other and to the Trustee (for inclusion in the Mortgage File) 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. Upon the request of any Rating Agency or any Class E, Class F, Class
G, Class H, Class J and Class K Certificateholder, the Master Servicer and the
Special Servicer shall each deliver copies of any of the items delivered
pursuant to the preceding sentence to such requesting Person.
(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
and such information and documents as are reasonably necessary for the Master
Servicer to make such Servicing Advance. 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 Non-Specially Serviced Mortgage
Loans in 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 (as to non-Specially Serviced Mortgage
Loans) and the Special Servicer (as to Specially Serviced Mortgage Loans, and as
to consents to actions of the Master 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, which consent shall not be unreasonably withheld), 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 the date which is two years prior to the Rated Final
Distribution Date, 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, as applicable, shall
make or permit or consent to, as applicable, 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 downgrade, qualification (if
applicable) or withdrawal 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 Cash Flow
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 (if applicable) or withdrawal of the rating then
assigned by Fitch, DCR and/or S&P, as applicable, to any Class of
Certificates; and
(vi) Except to the extent the Special Servicer determines that a
modification, waiver or amendment is required for the best interests of
all Certificateholders in accordance with the Servicing Standard, the
Special Servicer shall not agree to any modification, waiver or amendment
of any term of, or take any of the other actions referenced in this
Section 3.20(a), with respect to any Specially Serviced Mortgage Loan if
such action 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, unless it shall have proposed
such action to the Directing Certificateholder in the same manner as the
Asset Status Report as provided in the second paragraph of Section
3.21(d).
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. With respect to a request to the Special Servicer
from the Master Servicer for approval for a modification, waiver or consent with
respect to a Mortgage Loan that would not require Rating Agency review, the
Special Servicer shall notify the Master Servicer of its decision within five
Business Days of receiving notice (and all supporting documentation reasonably
required by the Special Servicer for its analysis) from the Master Servicer of
the Master Servicer's decision to approve the modification, wavier or consent.
(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 (as to non-Specially Serviced Mortgage
Loans) and the Special Servicer (as to Specially Serviced Mortgage Loans, and as
to consents of actions of the Master 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 E,
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 Master
Servicer shall establish reasonable procedures as to the application of Special
Servicer receipts and tendered payments, and the Special Servicer 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 the originals, and to the Master Servicer
copies, 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 Standard, 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(d) 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 Standard. Upon making such determination in clause (ii) of the
immediately preceding sentence, the Special Servicer may 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; provided, however, that the
Special Servicer shall in any event take such action as it shall determine to be
in the best interest of all the Certificateholders pursuant to the Servicing
Standard. If the Asset Status Report is rejected by the Certificateholders, the
Special Servicer shall revise such Asset Status Report as described in this
Section 3.21(d). The Trustee shall be entitled to reimbursement from the Trust
Fund for the reasonable expenses of providing such notices.
Anything above to the contrary notwithstanding, in no event shall
the time period for negotiations as to the Asset Status Report between the
Controlling Certificateholder and the Special Servicer exceed sixty (60) days,
at which time the action specified in the Asset Status Report shall be
implemented by the Special Servicer.
The Special Servicer shall have the authority to meet with the
Mortgagor for any Specially Serviced Mortgage Loan and take such actions
consistent with the Servicing Standards and the related Asset Status Report. The
Special Servicer shall not take any action inconsistent with the related Asset
Status Report, unless such action would be required in order to act in
accordance with the Servicing Standards.
No direction of the Directing Certificateholder shall (A) require or
cause the Special Servicer to violate the terms of a Specially Serviced Mortgage
Loan, applicable law or any provision of this Agreement, including the Special
Servicer's obligation to act in accordance with the Servicing Standards and to
maintain the REMIC status of each REMIC, or (B) result in the imposition of a
"prohibited transaction" or "prohibited contribution" tax under the REMIC
Provisions, or (C) expose the Master Servicer, the Special Servicer, the
Depositor, the Mortgage Loan Seller, the Trust Fund, the Trustee or their
officers, directors, employees or agents to any claim, suit or liability, or (D)
materially expand the scope of the Special Servicer's or the Master Servicer's
responsibilities under this Agreement.
SECTION 3.22 Sub-Servicing Agreements.
(a) The Master Servicer and, with the consent of the Depositor, the
Special Servicer, may each enter into Sub-Servicing Agreements to provide for
the performance by third parties of any or all of its obligations hereunder,
provided that, in each case, the Sub-Servicing Agreement: (i) is not
inconsistent with this Agreement; (ii) expressly or effectively provides that if
the Master Servicer or Special Servicer, as the case may be, shall for any
reason no longer act in such capacity hereunder (including, without limitation,
by reason of an Event of Default), any successor to the Master Servicer or the
Special Servicer, as the case may be, hereunder (including the Trustee if the
Trustee has become such successor pursuant to Section 7.02) may thereupon either
assume all of the rights and, except to the extent they arose prior to the date
of assumption, obligations of the Master Servicer or Special Servicer, as the
case may be, under such agreement or, subject to the provisions of Section
3.22(d), terminate such rights and obligations, in either case without payment
of any fee except as set forth in Section 3.22(d); (iii) in the case of a
Sub-Servicing Agreement entered into by the Master Servicer, expressly or
effectively provides that such agreement shall be suspended with respect to any
Mortgage Loan serviced thereunder at the time such Mortgage Loan becomes a
Specially Serviced Mortgage Loan (but only until such time as such Mortgage Loan
becomes a Corrected Mortgage Loan, to the extent that the Special Servicer is
responsible for servicing such 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; (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); (vi) does not
authorize any Sub-Servicer to approve a modification or foreclosure of any
Mortgage Loan without the approval of the Master Servicer, in the case of
Non-Specially Serviced Mortgage Loans or of the Special Servicer, in the case of
Specially Serviced Mortgage Loans; (vii) imposes no liability whatsoever on the
Trustee or the Certificateholders with respect to anything contained therein;
and (viii) provides that the Master Servicer and the Special Servicer each shall
pay the fees of any subservicer retained by it in accordance with the respective
Subservicing Agreement and, in any event, from its own funds. 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 XXVI 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) to the extent subservicing multifamily loans, 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 E, 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 XXVI 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 downgraded, qualified (if
applicable) 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, 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. Notwithstanding anything in this Section 3.24 to the
contrary, the Master Servicer, and any Sub-Servicer with the prior written
permission of the Master Servicer, may disseminate general statistical
information relating to the Mortgage Loan portfolio being serviced (as to any
Sub-Servicer, limited to its own subserviced portfolio), so long as no
Mortgagors are identified.
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 Mortgagor to post defeasance collateral in lieu of making a permitted
prepayment, the Master Servicer shall so require defeasance, provided such
defeasance complies with Treasury Regulations Section 1.860G-2(a)(8).
(b) The Master Servicer shall enforce the provisions of the related
Mortgage Loan documents that require, as a condition to the exercise by the
Mortgagor of any defeasance rights, that the Mortgagor pay any costs and
expenses associated with such exercise.
(c) To the extent that the terms of a Mortgage permit defeasance,
the Master Servicer shall require the related Mortgagor to deliver a
certification from the Mortgagor's independent certified public accountants as
to the sufficiency of the related treasury securities, and provide a copy of
such certification to each Rating Agency.
(d) To the extent that the terms of Mortgage Loan documents permit
defeasance, the Master Servicer shall not approve the form and substance of any
required legal opinion(s) in connection with such defeasance unless (i) in the
case of S&P and Fitch it shall have confirmed to it in writing that such
defeasance will not result in the withdrawal, downgrade or qualification (if
applicable) of the rating of any Class of Certificates and (ii) in the case of
DCR, the requirements of the following paragraph (e) are satisfied.
(e) With respect to each Mortgage Loan that provides for defeasance,
to the extent permitted by the terms of such Mortgage Loan, the Master Servicer
shall require the related Mortgagor to (i) provide replacement collateral
consisting of U.S. government securities within the meaning of Treasury
Regulations Section 1.860G-2(a)(8)(i) in an amount sufficient to make all
scheduled payments under the Mortgage Note when due, (ii) deliver a
certification from an independent certified public accounting firm certifying
that the replacement collateral is sufficient to make such payments, (iii)
designate a Single-Purpose Entity (if the borrower no longer complies) to assume
the Mortgage Loan and own the collateral and (iv) provide an opinion from
counsel that the Trustee has a perfected security interest in the new
collateral. If the terms of the Mortgage Loan permit the Master Servicer to
impose the foregoing requirements, a confirmation from DCR is not required. In
such case, the Master Servicer shall provide DCR with a letter stating that the
foregoing requirements have been met. If, however, the terms of the Mortgage
Loan do not permit the Master Servicer to impose such requirements, the Master
Servicer shall obtain a confirmation from DCR that the defeasance will not
result in a downgrade or withdrawal of the ratings assigned by DCR to any Class
of Certificates.
(f) 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 downgrade,
qualification (if applicable) or withdrawal of the rating of any Class of
Certificates, subject to paragraph (j) below.
(g) To the extent that the terms of Mortgage Loan documents permit
the related Mortgagor, subsequent to the Original Closing Date, to incur
additional debt secured by the Mortgaged Property and condition such incurrence
of additional debt on lender's consent or 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 consent or 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 downgrade, withdrawal or qualification (if applicable) of
any Class of Certificates.
(h) To the extent that (i) the outstanding principal balance of a
Mortgage Loan is $20,000,000 or more, constitutes 2% or more of the then current
principal balance of the Mortgage Pool, or is one of the ten (10) largest
Mortgage Loans in the Mortgage Pool, and (ii) the terms of the related Mortgage
Loan documents require the consent of the lender for the transfer of an Over 49%
Interest in the related borrower or in any special purpose entity owning an
equity interest in such borrower, or any Over 49% Interest in any entity owning
an Over 49% Interest in any borrower or in any special purpose entity owning an
equity interest in such borrower, the Master Servicer shall not so consent to
such a transfer unless each Rating Agency shall have confirmed to it in writing
that such transfer, it consummated, would not result in the downgrade,
qualification (if applicable) or withdrawal of the rating of any Class of
Certificates, subject to paragraph (j) below. For purposes of this clause (h),
an "Over 49% Interest" in any entity refers to any interest representing over
49% of the equity ownership interests in such entity.
(i) To the extent that (i) the outstanding principal balance of a
Mortgage Loan is $20,000,000 or more, constitutes 2% or more of the then current
principal balance of the Mortgage Pool, or is one of the ten (10) largest
Mortgage Loans in the Mortgage Pool, and (ii) the terms of the related Mortgage
Loan documents require the consent of the lender in order for the related
Mortgagor to change the manager of the related Mortgaged Property, the Master
Servicer shall not so consent to such a change in management unless each Rating
Agency shall have confirmed to it in writing that such a change in management,
if effected, would not result in the withdrawal, downgrade or qualification (if
applicable) of the rating of any Class of Certificate, subject to paragraph (j)
below.
(j) Each transfer, assumption or encumbrance, hotel change of
franchise association or property manager change requiring the consent of the
mortgagee with respect to a Mortgage Loan having a current outstanding principal
balance constituting 2% or more of the then current principal balance of the
Mortgage Pool ("DCR Review Threshold") (provided that for property manager
changes, the DCR Review Threshold will be 5% or more of the then current
principal balance of the Mortgage Pool), or with respect to a Mortgage Loan that
is one of the ten (10) largest Mortgage Loans in the Mortgage Pool ("Fitch
Review Threshold"), will be subject to a confirmation from DCR that granting
such consent will not result in a downgrade or withdrawal of the rating on any
Class of Certificates. For this purpose, in connection with any direct or
indirect transfer of ownership in the Borrower and any assumption of a Mortgage
Loan, groups of cross-collateralized Mortgage Loans and group of Mortgage Loans
with the same or affiliated Borrowers will be aggregated and treated as one. In
connection with the request for such consent, the Master Servicer shall prepare
and deliver to DCR or Fitch, as applicable, a memorandum outlining its analysis
and recommendation in accordance with the Servicing Standard together with
copies of all relevant documentation. The Master Servicer shall also prepare and
provide DCR or Fitch, as applicable, with such memorandum and documentation for
all transfer, assumption or encumbrance, any hotel change of franchise
association and property manager change, consents granted for Mortgage Loans
below the DCR or Fitch Review Threshold, as applicable, but for which the Master
Servicer's decision will be sufficient and no confirmation from DCR or Fitch, as
applicable, will be required.
SECTION 3.27 Year 2000 Compliance.
Each of the Master Servicer and the Special Servicer covenants that
by August 31, 1999, any custom-made software or hardware designed or purchased
or licensed by it and used by it in the course of the operation or management
of, or the compiling, reporting or generation of, data required by this
Agreement will not contain any deficiency (x) in the ability of such software or
hardware to identify correctly or perform calculations or other processing with
respect to dates after December 31, 1999, or (y) that would cause such software
or hardware to be fit no longer for the purpose for which it was intended by
reason of the changing of the date from 1999 to 2000.
SECTION 3.28 Maintenance of Portfolio Mortgage Loan
Environmental Policy.
Each of the Master Servicer and the Special Servicer hereby agrees
to act in accordance with the Servicing Standard to abide by the terms and
conditions precedent to payment of claims under the Environmental Policy and to
act in accordance with the Servicing Standard to take all such action as may be
required to comply with the terms and provisions of such policy in order to
maintain, in full force and effect, the Environmental Policy. In addition, each
of the Master Servicer and the Special Servicer hereby agrees that it will act
in accordance with the Servicing Standard to take any and all actions required
under the Environmental Policy in connection with any claim, including, without
limitation (i) complying with the protocol for estimation of cleanup costs as
set forth in the Environmental Policy and (ii) timely presenting of proof of
loss containing all required information.
The Environmental Policy may be amended from time to time by the
mutual agreement of the parties thereto, provided that such amendment shall not
result in a downgrade, qualification or withdrawal, as applicable, 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).
As to a Portfolio Mortgage Loan, upon the occurrence of either a
monetary or non-monetary default, which in the Master Servicer's reasonable
judgment (subject to the Servicing Standard) materially and adversely affects
the Portfolio Mortgage Loan or Mortgaged Property, beyond any applicable grace
or cure period, or upon notice or discovery that a Mortgaged Property has
suffered a "pollution event" ("Pollution Event") as described in the
Environmental Policy, the Master Servicer shall obtain, or shall cause the
related Subservicer to obtain, immediately following the Master Servicer's or
Subservicer's discovery or notification of such a default or Pollution Event,
with a copy to the Special Servicer and to the Directing Certificateholder, the
following information, as applicable: (i) the nature of any default and/or
Pollution Event, when each first occurred, when the Master Servicer or
Subservicer became aware of each, and whether any default or Pollution Event is
continuing, and as for each default, provide each defaulted dollar payment
amount (if any), and quote and name each affected document, section and
paragraph containing or directly quoting the default language, and as for each
Pollution Event, provide an address sufficient to describe both the location of
the affected Mortgaged Property and the location of the Pollution Event; (ii)
whether the Master Servicer has a good faith belief that the default will be
cured and/or each Pollution Event will be eradicated or cleaned-up within a
certain time period, and if so: (x) detail the underlying facts and the nature
of such belief; (y) indicate the likely cure/eradication/clean-up timeframe in
days. The Master Servicer shall obtain, or shall cause the related Subservicer
to obtain, copies of the following documents pertaining to the related Mortgaged
Property: each Environmental Site Inspection, report and/or analysis; each
appraisal narrative regarding the historical use; and each property inspection;
which shall be given to the Directing Certificateholder upon request, and shall
be used by the Master Servicer to create or cause to create an environmental
insurance protocol plan proposal (an "Environmental Insurance Protocol"). In
addition, the Master Servicer shall review and comply with all terms and
conditions of the Environmental Policy, including giving specific and timely
notice thereunder.
Each Environmental Insurance Protocol shall require the Master
Servicer to obtain, at the Trust Fund's expense, a Phase I Environmental Site
Assessment Report within ten (10) Business Days of discovery or notice of a
default or a Pollution Event. All related out-of-pocket expenses related to this
process incurred by the Subservicer, Special Servicer and Master Servicer shall
be a Trust Fund expense.
Any and all amounts collected by the Master Servicer or the Trustee
or, except with respect to Portfolio Mortgage Loans which it has already
repurchased hereunder, the Portfolio Mortgage Loan Seller, under the
Environmental Policy shall be immediately deposited in the Certificate Account.
Costs and expenses (other than extraordinary enforcement expenses related to the
enforcement of the Environmental Policy, including related judicial proceedings
and "out-of-pocket" costs and expenses of outside legal counsel, for which the
Master Servicer shall not be responsible) incurred by the Master Servicer in
connection with this Section 3.28 shall be reimbursable out of the Certificate
Account. The Master Servicer shall not be required to incur any cost or expense
for premiums for such Environmental Policy.
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
REMIC II 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 Class MA-1, Class MA-2 and Class MX Uncertificated Interests
shall be considered to be held in the REMIC III Distribution Account until
distributed to the Holders of the Class A-1 Certificates as set forth in Section
4.01(b), to the Trustee for the benefit, the Class UX Uncertificated Interest
and set forth in Section 4.01(a)(ii) and the Holders of the Class R-III
Certificates as set forth in Section 4.01(b). Such amounts distributed on the
Class MA-3, Class MA-4, Class MA-5, Class MA-1C and Class MA-2C Uncertificated
Interests shall be considered to be held in the REMIC IIIU Distribution Account
until distributed to the Trustee for the benefit of the Class UA-2, Class UA-3,
Class UA-4, Class UA-1C and Class UA-2C Uncertificated Interests as set forth in
Section 4.01(a)(ii) the Holder of the Class R-IIIU Certificates as set forth in
Section 4.01(b) (to the extent of such portion of the Available Distribution
Amount, the "REMIC III Distribution Amount"). Such amounts distributed on the
Class UA-2, Class UA-3, Class UA-4, Class UA-1C and Class UA-2C Uncertificated
Regular Interests (to the extent of such portion of the Available Distribution
Amount, the "REMIC IIIU Distribution Amount"), together with the amounts
distributed on the Class MB Uncertificated Interest and on the Class UX
Uncertificated Interest as described in the second and third sentences,
respectively, of this Section 4.01(a)(i), shall be considered to be held in the
REMIC IV Distribution Account until distributed to the Holders of the Class A-2,
Class A-3, Class A-4, Class A-1C, Class A-2C, Class B and Class X Certificates
and the Class R-IV Certificates as set forth in Section 4.01(b) (to the extent
such portion of the Available Distribution Amount, the "REMIC IV Distribution
Amount").
(ii) The principal and interest 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 principal and interest amounts, allocations,
reimbursements and timing and amount of distributions on the Corresponding
REMIC II Uncertificated Regular Interests (in the case of the Class LA-1,
Class LA-2, Class LA-3, Class LA-4, Class LA-5, Class LA-1C, Class LA-2C,
and Class LB Uncertificated Interests) or Corresponding Certificates taken
together with their related Components of the Class MX Uncertificated
Interest (2) on each of the Class MA-1, Class MA-2 and Class MX
Uncertificated Interests will be identical to such principal amounts,
allocations, reimbursements and timing and amount of distributions on the
Class A-1 Certificates (in the case of the Class MA-1 and Class MA-2
Uncertificated Interests, allocated between them as specified in the
definition of "Uncertificated Principal Balance" and in Section 4.01(b) of
this Agreement and, as to distribution of interest, pro rata based on
their respective entitlements) and on the [Class MX Component] of the
Class UX Uncertificated Interest, provided that such amounts for the Class
UX Uncertificated Interest will be allocated among the Class MA-1
Component, the Class MA-2 Component and the respective Components of the
Class MX Uncertificated Interest based on their respective entitlements,
(3) on each of the Class MA-3, Class MA-4, Class MA-5, Class MA-1C, and
Class MA-2C Uncertificated Interests will be identical to such principal
and interest amounts, allocations, reimbursements and timing and amount of
distribution in the aggregate on the corresponding REMIC IIIU
Uncertificated Regular Interests, allocated among them as specified in the
definition of "Uncertificated Principal Balance" and (4) on each of the
Class UA-2, Class UA-3, Class UA-4, Class UA-1C, Class UA-2C and Class MB
Uncertificated Interests will be identical to such principal amounts,
allocations, reimbursements and timing and amount of distributions on the
Class A-2, Class A-3, Class A-4, Class A-1C, Class A-2C and Class B
Certificates, respectively taken together with their related Components of
the Class X Certificates.
(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)(i) and distributions on the
Unaffected Certificates pursuant to Section 4.01(b) and 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).
(v) any amount that remains in the REMIC III Distribution Account
on each Distribution Date after distribution of the REMIC III Distribution
Amount and Prepayment Premiums allocable to the REMIC III Uncertificated
Interests pursuant to Section 4.01(b) and Section 4.01(c)(ii) shall be
distributed to the Holders of the Class R-III Certificates (but only to
the extent of the Available Distribution Amount for such Distribution Date
remaining in the REMIC III Distribution Account, if any).
(vi) any amount that remains in the REMIC IIIU Distribution
Account on each Distribution Date after distribution of the REMIC IIIU
Distribution Amount and Prepayment Premiums allocable to the REMIC IIIU
Interests pursuant to Section 4.01(b) and Section 4.01(c)(ii) shall be
distributed to the Holders of the Class R-IIIU Certificates (but only to
the extent of the Available Distribution Amount for such Distribution Date
remaining in the REMIC IIIU Distribution Account, if any).
(b) On each Distribution Date, to the extent of the Available
Distribution Amount for such Distribution Date, the Trustee shall make
distributions to the Certificates in the following priority (deemed, in the case
of the Class X, Class A-2, Class A-3, Class A-4, Class A-1C, Class A-2C, Class B
and Class R-IV Certificates to be made from the REMIC IV Distribution Account in
the case of the Class A-1 Certificates to be made from the REMIC III
Distribution Account, in the case of the Unaffected REMIC II Certificates to be
made from the REMIC II Distribution Account):
(i) concurrently from the Available Distribution Amount, pro
rata, to the Class A-1, Class A-2, Class A-3, Class A-4, Class A-1C, Class
A-2C and Class X Certificates, up to an amount equal to, and pro rata as
among such Classes in accordance with, all Distributable Certificate
Interest in respect of each such Class for such Distribution Date and, to
the extent not previously paid, for all prior Distribution Dates;
(ii) sequentially to the Class A-1, Class A-2, Class A-3 and
Class A-4 Certificates, in reduction of the Certificate Principal Balance
thereof until the Certificate Principal Balance thereof has been reduced
to zero, an amount up to the Portfolio Senior Certificate Principal
Distribution Amount for such Distribution Date;
(iii) to the Class A Certificates, in reduction of the
Certificate Principal Balances thereof, an amount up to the remaining
portion of the Principal Distribution Amount for such Distribution Date
remaining after the distribution described in clause (ii), in the
following order of priority:
first, to the Class A-1C Certificates, until the Certificate
Principal Balance thereof has been reduced to zero;
second, to the Class A-2C Certificates, until the Certificate
Principal Balance thereof has been reduced to zero;
third, to the Class A-1 Certificates, until the Certificate
Principal Balance thereof has been reduced to zero;
fourth, to the Class A-2 Certificates, until the Certificate
Principal Balance thereof has been reduced to zero;
fifth, to the Class A-3 Certificates, until the Certificate
Principal Balance thereof has been reduced to zero; and
sixth, to the Class A-4 Certificates, until the Certificate
Principal Balance thereof has been reduced to zero;
(iv) to reimburse the holders of the Class A Certificates, up to
an amount equal to, and pro rata as among such Classes in accordance with,
the respective amounts of Realized Losses and Additional Trust Fund
Expenses, if any, previously allocated to such Classes of Certificates and
for which no reimbursement has previously been paid;
(v) 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;
(vi) if the Class Principal Balances of the Class A 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;
(vii) 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;
(viii) 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;
(ix) if the Class Principal Balances of the Class A 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;
(x) 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;
(xi) 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;
(xii) if the Class Principal Balances of the Class A, 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;
(xiii) 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;
(xiv) 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;
(xv) if the Class Principal Balances of the Class A, 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;
(xvi) 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;
(xvii) 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;
(xviii) if the Class Principal Balances of the Class A, 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;
(xix) 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;
(xx) 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;
(xxi) if the Class Principal Balances of the Class A, 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;
(xxii) 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;
(xxiii) 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;
(xxiv) if the Class Principal Balances of the Class A, 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;
(xxv) 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;
(xxvi) 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;
(xxvii) if the Class Principal Balances of the Class A, 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;
(xxviii) 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;
(xxix) 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;
(xxx) if the Class Principal Balances of the Class A, 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;
(xxxi) 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
(xxxii) to distributions to the Holders of the Class R-IV
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 (xxi) 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 (iii)
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 (vi), (ix), (xii), (xv), (xviii), (xxi), (xxiv), (xxvii) and (xxx) 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 any of clauses (vi), (ix), (xii),
(xv), (xviii), (xxi), (xxiv), (xxvii) and (xxx) 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) (A) (i) On each Distribution Date, Prepayment Premiums collected
on the Mortgage Loans in Loan Group 1 during the related Prepayment Period
(including for this purpose any amount paid by the Mortgage Loan Seller in
respect of the Designated Rite Aid Mortgage Loans in Loan Group 1 in accordance
with Section 4.01(c)(iii)) will be distributed by the Trustee to the following
Classes of Certificates: to the Class A-1C, Class A-2C, Class B, Class C and
Class D Certificates, in an amount equal to the product of (a) a fraction whose
numerator is the amount distributed as principal to such Class on such
Distribution Date, and whose denominator is the total amount distributed as
principal to the Class A-1C, Class A-2C, Class B, Class C, Class D, Class E,
Class F, Class G, Class H, Class J and Class K Certificates on such Distribution
Date, (b) the Base Interest Fraction for the related principal payment on such
Class of Certificates, and (c) the aggregate amount of Prepayment Premiums
relating to the Mortgage Loans in Loan Group 1 Collected on such principal
prepayments during the related Prepayment Period. Any Prepayment Premiums
relating to the Mortgage Loans in Loan Group 1 collected during the related
Prepayment Period remaining after such distributions will be distributed to the
holders of the Class X Certificates.
(B) On each Distribution Date, Prepayment Premiums collected on
the Mortgage Loans in Loan Group 2 during the related
Collection Period (including for this purpose any amount paid
by the Mortgage Loan Seller in respect of the Designated Rite
Aid Mortgage Loans in Loan Group 2 in accordance with Section
4.01(c)(iii)) will be distributed by the Trustee to the Class
A-1, Class A-2, Class A-3 and Class A-4 Certificates, in an
amount equal to the product of (a) a fraction, not greater
than 1, whose numerator is the amount distributed as principal
to such Class on such Distribution Date, and whose denominator
is the total amount distributed as principal on such
Distribution Date from the Mortgage Loans in Loan Group 2, (b)
the Base Interest Fraction for the related principal
prepayment and such Class of Certificates, and (c) the
aggregate amount of Prepayment Premiums relating to the
Mortgage Loans in Loan Group 2 collected on such principal
prepayments during the related Prepayment Period. Any yield
maintenance charges relating to the Mortgage Loans in Loan
Group 2 collected during the related Prepayment Period
remaining after such distributions will be distributed to the
holders of the Class X Certificates.
(C) The "Base Interest Fraction" with respect to any principal
prepayment on any Mortgage Loan and with respect to any class
of Offered Certificates is a fraction (a) whose numerator is
the amount, if any, by which (i) the Pass-Through Rate on such
Class of Certificates exceeds (ii) the discount rate used in
accordance with the related Mortgage Loan documents in
calculating the Prepayment Premium with respect to such
Principal Prepayment and (b) whose denominator is the amount,
if any, by which (i) the Mortgage Rate on such Mortgage Loan
exceeds (ii) the discount rate used in accordance with the
related Mortgage Loan documents in calculating the yield
maintenance charge with respect to such principal prepayment.
However, under no circumstances shall the Base Interest
Fraction be greater than one. If such discount rate is greater
than or equal to the lesser of (x) the Mortgage Rate on such
Mortgage Loan and (y) the Pass-Through rate described in the
preceding sentence, then the Base Interest Fraction will equal
zero.
(D) No prepayment premiums or yield maintenance charges will be
distributed to the holders of the Class E, Class F, Class G,
Class H, Class J or Class K Certificates. After the
Certificate Principal Balances of the Class A-1C, Class A-2C,
Class B, Class C and Class D Certificates have been reduced to
zero, all prepayment premiums and yield maintenance charges
with respect to the Mortgage Loans in Loan Group 1 shall be
distributed to the holders of the Class X Certificates. After
the Certificate Principal Balance of the Class A-1, Class A-2,
Class A-3 and Class A-4 Certificates have been reduced to
zero, all Prepayment Premiums with respect to the Mortgage
Loans in Loan Group 2 shall be distributed to holders of the
Class X Certificates.
(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) (excluding for this purpose any amount paid
by the Mortgage Loan Seller in respect of the Designated Rite Aid Mortgage
Loans in accordance with Section 4.01(c)(iii), which amount shall be
deemed distributed in accordance with such Section 4.01(c)(iii)) shall
first be deemed to 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 (A) on the Class A-1 Certificates shall
be deemed to be distributed from REMIC II to REMIC III in respect of the
Class MA-1 and Class MA-2 Uncertificated Interests pro rata based upon
their respective Uncertificated Principal Balances, (B) on the Class A-2,
Class A-3, Class A-4, Class A-1C, Class A-2C and Class B Certificates
shall be distributed, (1) from REMIC II to REMIC IIIU in respect of the
Class MA-3, Class MA-4, Class MA-5, Class MA-1C and Class MA-2C
Uncertificated Interests, (2) from REMIC II to REMIC IV in respect of the
Class MB Uncertificated Interest, (3) from REMIC IIIU to REMIC IV in
respect of the Class UA-2, Class UA-3, Class UA-4, Class UA-1C and Class
UA-2C Uncertificated Interests, in each case based on the amount
distributable on the corresponding Certificates; and (c) Prepayment
Premiums distributable on the Class X Certificates shall be deemed to be
distributed (1) from REMIC II to REMIC III in respect of the Class MX
Uncertificated Interest, it being understood that the amount so allocated
in respect of the Class MX Uncertificated Interest shall be equal to the
amount remaining, from the amount of Prepayment Premiums distributable on
the Class A-1 Certificates and Class UX Uncertificated Interest, after
allocation to the Class MA-1 and Class MA-2 Uncertificated Interests in
accordance with clause (1) of the second sentence of this Section
4.01(c)(ii) (which remaining amount shall be the entire amount so
distributable after the Uncertificated Principal Balances of the Class
MA-1 and Class MA-2 Uncertificated Interests have been reduced to zero);
and (2) from REMIC III to REMIC IV in respect of the Class UX
Uncertificated Interest, it being understood that the amount so allocated
in respect of the Class UX Uncertificated Interest shall be equal to the
amount of Prepayment Premiums remaining, after allocations to the Class
A-1, Class A-2, Class A-3, Class A-4, Class A-1C, Class A-2C and Class B,
Class C and Class D Certificates in accordance with Section 4.01(c)(i)
(which remaining amount shall be the entire amount so distributable after
the Class Principal Balances of such Classes of Certificates have been
reduced to zero).
(iii) In the event of a payment default under any of Loan Nos.
51019, 51327, 51484, 51516 and 3051141 (such five Mortgage Loans, the
"Designated Rite Aid Mortgage Loans"), the Mortgage Loan Seller agrees to
pay to the Trust, for the benefit of the holders of the Class A-2, Class
A-3, Class A-4, Class A-1C, Class A-2C, Class X, Class B, Class C and
Class D Certificates that are then entitled to receive a distribution of
Prepayment Premiums pursuant to Section 4.01(c)(i) above, an amount equal
to any Prepayment Premiums due, but not received, on such Designated Rite
Aid Mortgage Loan; provided, however, that the aggregate amount payable by
the Mortgage Loan Seller pursuant to this sentence shall in no event
exceed $1,376,672.94 (which dollar amount equals 10% of the aggregate
principal balance of the Designated Rite Aid Loans as of November 10,
1999). The Trustee shall distribute any such payment received from the
Mortgage Loan Seller pursuant to the preceding sentence of this Section
4.01(c)(iii) to the Classes of such Certificates then so entitled in the
same manner as provided in Section 4.01(c)(i). Notwithstanding anything to
the contrary contained in Section 4.01(c)(ii) above, any amount so paid by
the Mortgage Loan Seller and distributed by the Trustee to the holders of
any of the Class A-2, Class A-3, Class A-4, Class A-1C, Class A-2C, Class
B or Class X Certificates shall be deemed to have been distributed
exclusively from REMIC IV, and any amount so paid and distributed to the
holders of any of the Class C or Class D Certificates shall be deemed to
have been distributed exclusively from REMIC II.
(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-IV 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 Determination Date for the related Distribution
Date, 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)
current but specially serviced or in foreclosure but not a REO Property;
(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 Principal 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;
(xix) current, reimbursed and outstanding Advances;
(xx) current and cumulative Prepayments;
(xxi) the number and aggregate principal balance of Mortgage
Loans as to which (A) foreclosure proceedings have been commenced as to
the related Mortgaged Property, and (B) bankruptcy proceedings have been
commenced as to the related Mortgagor; and
(xxii) the ratings from all Rating Agencies for all classes of
Certificates.
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 Cash Flow 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 (it being understood that a
separate Special Servicer Loan Status Report shall not be necessary if the
equivalent information is provided in the foregoing or other reports delivered
by the Master Servicer), (v) Historical Loss Estimate Report, and (vi) Servicer
Watch List (such six 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 REMIC II Regular Certificate a statement
containing the information as to the applicable Class set forth in clauses (i)
and (ii) above of the description of Distribution Date Statement, aggregated for
such calendar year or applicable portion thereof during which such Person was a
Certificateholder, together with such other information as the Trustee
determines to be necessary to enable Certificateholders to prepare their tax
returns for such calendar year. Such obligation of the Trustee shall be deemed
to have been satisfied to the extent that substantially comparable information
shall be provided by the Trustee pursuant to any requirements of the Code as
from time to time are in force.
Upon filing with the IRS, the REMIC Administrator shall furnish to
the Holders of the Class R-I, Class R-II, Class R-III, Class R-IIIU and Class
R-IV 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, Class R-III and Class
R-IIIU and Class R-IV Certificates may reasonably request.
The Trustee shall make available each month, to any interested
party, the Distribution Date Statement, via the Trustee's Website and fax on
demand service. The Trustee's fax on demand service may be accessed by calling
(301) 815-6610. In addition, the Trustee shall also make the Servicer Reports,
Mortgage Loan information as presented in the CMSA Loan Setup File and CMSA 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.
The Trustee may rely on and shall not be responsible absent manifest
error for the content or accuracy of any information provided by third parties
for purposes of preparing the Distribution Date Statement and my affix thereto
any disclaimer it deems appropriate in its reasonable discretion (without
suggesting liability on the part of any other party thereto).
In connection with providing access to the Trustee's Website, the
Trustee may require online registration and the acceptance of a disclaimer.
Neither the Trustee nor the Master Servicer nor the Special nor the Special
Servicer shall be liable for the dissemination of information in accordance
herewith.
(b) At or before 1:00 p.m. (New York City time) on the third
Business Day prior to the related Distribution Date, beginning in November,
1999, the Master Servicer shall deliver or cause to be delivered to the Trustee,
and as requested to the Special Servicer and each Rating Agency (it being
understood that DCR, Fitch and S&P hereby request to receive copies of all such
reports), 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
Estimate Report, (5) the Special Servicer Loan Status Report most recently
received by the Master Servicer (it being understood that a separate Special
Servicer Loan Status Report shall not be necessary if the equivalent information
has been included in the foregoing or other reports delivered by the Master
Servicer) and , beginning with the Master Servicer Reporting Date in November,
1999 (prior to which time Excel Spreadsheet reporting may be used) (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 one Business Day after the related Determination Date, as required by
Section 4.02(c) below) (the "CSSA Loan Periodic Update File"):
(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 C to the Prospectus
Supplement, in each case reflecting the changes in the Mortgage Pool during the
related Collection Period.
Not later than the fifth 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 as to the calendar month prior to 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).
Following the end of each calendar quarter, commencing with the
calendar quarter ended March 31, 2000, within 105 days (or 180 days, in the case
of annual operating information), of receipt by the Master Servicer, as to
non-Specially Serviced Mortgage Loans, and within 30 days after receipt by the
Special Servicer, as to Specially Serviced Mortgage Loans, of any annual or
quarterly operating statements or rent rolls with respect to any Mortgaged
Property or REO Property, the Master Servicer or the Special Servicer, as
applicable, shall, based upon such operating statements or rent rolls, prepare
(or, if previously prepared, update) the written analysis of the operations, by
completing an Operating Statement Analysis Worksheet in the form of Exhibit M
for such Mortgaged Property (with the annual operating statements attached
thereto as an exhibit). The Servicer shall maintain one Operating Statement
Analysis Report for each Mortgaged Property and REO Property (to the extent
prepared by and received from the Special Servicer in the case of any REO
Property or any Mortgaged Property constituting security for a Specially
Serviced Mortgage Loan). The Operating Statement Analysis Report for each
Mortgaged Property (other than any such Mortgaged Property which is REO Property
or constitutes security for a Specially Serviced Mortgage Loan) is to be updated
by the Master Servicer or the Special Servicer, as applicable, within thirty
days after receipt by the Master Servicer or Special Servicer, as applicable, of
updated operating statements for such Mortgaged Property. The Master Servicer or
the Special Servicer, as applicable, will use the "Normalized" column (applying
CSSA normalization methodology in effect from time to time) or the Operating
Statement Analysis Worksheet to update the Operating Statement Analysis Report
and will use any operating statements received with respect to any Mortgaged
Property (other than any such Mortgaged Property which is REO Property or
constitutes security for a Specially Serviced Mortgage Loan) to update the
Operating Statement Analysis Report for such Mortgaged Property. The Special
Servicer shall remit each Operating Statement Analysis Report prepared by it or
the related data fields, together with each Operating Statement Analysis
Worksheet or related data fields with the underlying operating statements and
rent rolls, to the Master Servicer in an electronic format reasonably acceptable
to the Master Servicer. All Operating Statement Analysis Reports and Operating
Statement Analysis Worksheets shall be maintained by the Master Servicer with
respect to each Mortgaged Property and REO Property, and the Master Servicer
shall forward copies thereof to the Rating Agencies, the Directing
Certificateholder, and the Trustee and, upon request, any Certificateholder or,
to the extent the Trustee or a Certificate Owner has confirmed its ownership
interest in the Certificates held thereby, such Certificate Owner, together with
the related operating statement or rent rolls. The Master Servicer shall
maintain an Operating Statement Analysis Report with respect to each Mortgaged
Property and REO Property. Each such Operating Statement Analysis Report shall
be substantially in the form of Exhibit K attached hereto (or, at the discretion
of the Master Servicer (provided that no less information is provided than is
set forth in Exhibit K), in a CSSA format). No later than 1:00 p.m., New York
City time, on the Master Servicer Remittance Date, beginning in November 1999,
the Master Servicer shall prepare in electronic form and deliver to the Trustee,
the Rating Agencies, and the Special Servicer a Watch List of all Mortgage Loans
that the Master Servicer has determined are in jeopardy of becoming Specially
Serviced Mortgage Loans (the "Servicer Watch List"). For this purpose, Mortgage
Loans that are in jeopardy of becoming Specially Serviced Mortgage Loans shall
include, without limitation: (i) Mortgage Loans having a Debt Service Coverage
Ratio that is less than 1.00x, (ii) Mortgage Loans as to which any required
inspection of the related Mortgage Property conducted by the Master Servicer
indicates a problem that the Master Servicer determines can reasonably be
expected to materially and adversely affect the cash flow generated by such
Mortgaged Property, (iii) Mortgage Loans which have come to the Master
Servicer's attention in the performance of its duties under this Agreement
without any expansion of such duties by reason hereof that (A) any tenant
occupying 25% or more of the space in the related Mortgaged Property has vacated
(without being replaced by a comparable tenant and lease) or been the subject of
bankruptcy or similar proceeding, or (B) relate to a Mortgagor or an affiliate
that is the subject of a bankruptcy or similar proceeding, (iv) Mortgage Loans
that are at least 30 days delinquent in payment, and (v) Mortgage Loans that are
within 60 days of maturity.
The Special Servicer, on the first Business Day after the
Determination Date, shall forward to the Master Servicer all information
collected by the Special Servicer which the Special Servicer is required to
include in its preparation of 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 the vacating by an anchor tenant of a
retail Mortgaged Property and any material casualty at or condemnation or
eminent domain proceeding in respect of a 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 first Business Day after the Determination Date prior to
each Distribution Date, the Special Servicer shall forward to the Master
Servicer (A) data fields required for the Master Servicer to prepare 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 (but not the Special
Servicer's Standby Fee), Liquidation 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. (214) 237-2034 (or such alternative
number provided by the Master Servicer to the Trustee in writing) and by
telephone to Paul G. Smyth at telephone no. (214) 237-2040 (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 (net of the Standby
Fee, which shall be advanced if not otherwise paid) 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), to the extent that such P&I
Advance relates to any Mortgage Loan, with respect to any Master Servicer
Remittance Date, having any Monthly Payment remaining unpaid past its Due Date
and past any applicable grace period for such Monthly Payment as of the
Determination Date in the same calendar month (a "Past Grace Period Loan"), in
which case such interest shall begin to accrue when such Mortgage Loan becomes a
Past Grace Period Loan, 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 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, (i) any Realized Losses
allocated to the Class A-1 Certificates pursuant to Section 4.04(a) with respect
to such Distribution Date shall reduce the Uncertificated Principal Balances of
the Class MA-1 and Class MA-2 Uncertificated Interests as a write-off and shall
be allocated pro rata between the Class MA-1 and Class MA-2 Uncertificated
Interests; (ii) any Realized Losses allocated to the Class A-2, Class A-3, Class
A-4, Class A-1C and Class A-2C Certificates pursuant to Section 4.04(a) with
respect to such Distribution Date shall reduce the Uncertificated Principal
Balances of the Class UA-2, Class UA-3, Class UA-4, Class UA-1C and Class UA-2C
Uncertificated Interests as a write-off and shall be allocated pro rata among
such REMIC IIIU Uncertificated Regular Interests; (iii) any Realized Losses
allocated to the Class UA-2, Class UA-3, Class UA-4, Class UA-1C and Class UA-2C
Uncertificated Interests pursuant to clause (ii) with respect to such
Distribution Date shall reduce the Uncertificated Principal Balances of the
Class MA-3, Class MA-4, Class MA-5, Class MA-1C and Class MA-2 Uncertificated
Interests as a write-off and shall be allocated pro rata among such
Uncertificated Interests in accordance with their Uncertificated Principal
Balances; and (iv) any Realized Losses allocated to the Class B Certificates
pursuant to Section 4.04(a) with respect to such Distribution Date shall reduce
the Uncertificated Principal Balances of the Class MB Uncertificated Interest as
a write-off. With respect to any Distribution Date, any Realized Losses or
Additional Trust Fund Expenses 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 LA-3, Class LA-4, Class LA-5, Class
LA-1C, Class LA-2C, 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 REMIC II Uncertificated Regular Interest pursuant to
the preceding sentence or Class of Corresponding Certificates pursuant to
Section 4.04(a).
SECTION 4.05 Interest Reserve Account.
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 only 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, the Master Servicer shall
withdraw from the Certificate Account, in respect of each Mortgage Loan which
accrues interest on an Actual/360 Basis, and remit to the Trustee for deposit
into the Interest Reserve Account, an amount equal to one day's interest at the
related 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 Distribution Account the aggregate of all Withheld Amounts on
deposit in the Interest Reserve Account.
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-21; 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 Original Certificates and the
Unaffected Certificates have been issued in denominations corresponding to
initial Certificate Principal Balances or Certificate Notional Amounts, as the
case may be, as of the Original Closing Date of not less than $100,000 (or, with
respect to the original 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. The New Certificates will be issuable in
denominations corresponding to initial Certificate Principal Balances as of the
Sequel Closing Date of not less than $10,000 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 Principal 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, the First
Sequel Closing Date or the Second Sequel Closing Date shall, in any event, be
dated the Original Closing Date, the First Sequel Closing Date or the Second
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.
(a) At all times during the term of this Agreement, there shall be
maintained at the office of the Certificate Registrar a Certificate Register in
which, subject to such reasonable regulations as the Certificate Registrar
(located as of the 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.
(b) No transfer of any Non-Registered Certificate shall be made
unless that transfer is made pursuant to an effective registration statement
under the Securities Act, and effective registration or qualification under
applicable state securities laws, or is made in a transaction which does not
require such registration or qualification. If a transfer (other than one by the
Depositor to an Affiliate thereof) is to be made in reliance upon an exemption
from the Securities Act, and under the applicable state securities laws, then
either: (i) the Certificate Registrar shall require that the transferee deliver
to the Certificate Registrar an investment representation letter (the
"Investment Representation Letter") substantially in the form of Exhibit B
attached hereto, which Investment Representation Letter shall certify, among
other things, that the transferee is an institutional "accredited investor" as
defined in Rule 501(a)(1), (2), (3) or (7) of Regulation D under the Securities
Act (an "Institutional Accredited Investor") or a "qualified institutional
buyer" as defined in Rule 144A under the Securities Act (a "Qualified
Institutional Buyer"), and the Certificate Registrar may also require that the
transferee deliver to the Certificate Registrar an Opinion of Counsel if such
transferee is not a Qualified Institutional Buyer or (ii) if the certifications
described in the preceding clause (i) cannot be provided, (a) the Certificate
Registrar shall require an Opinion of Counsel reasonably satisfactory to the
Certificate Registrar and the Depositor that such transfer may be made pursuant
to an exemption, describing the applicable exemption and the basis therefor,
from registration or qualification under the Securities Act, applicable state
securities laws and other relevant laws, which Opinion of Counsel shall not be
an expense of the Trust Fund, the Certificate Registrar, the Depositor or the
Trustee and (b) the Certificate Registrar shall require the transferor to
execute a certification in form and substance satisfactory to the Certificate
Registrar setting forth the facts surrounding such transfer; provided, however,
that a transfer of a Non-Registered Certificate of any such Class may be made to
a trust if the transferor provides to the Certificate Registrar and to the
Trustee a certification that interests in such trust may only be transferred
subject to requirements substantially to the effect set forth in this Section
5.02. The Servicer will furnish, or cause to be furnished, upon the request of
any Holder of Non-Registered Certificates, to a prospective purchaser of such
Non-Registered Certificates who is a Qualified Institutional Buyer, such
information as is specified in paragraph (d)(4) of Rule 144A with respect to the
Trust Fund, unless, at the time of such request, the entity with respect to
which such information is to be provided is subject to the reporting
requirements of Section 15(d) of the Exchange Act. None of the Depositor, the
Trustee, the Servicer or the Certificate Registrar is obligated to register or
qualify any Class of Non-Registered Certificates under the Securities Act or any
other securities law or to take any action not otherwise required under this
Agreement to permit the transfer of any Non-Registered Certificate without
registration or qualification. Any Holder of a Non-Registered Certificate
desiring to effect such a transfer shall, and does hereby agree to, indemnify
the Depositor, the Trustee, the Servicer and the Certificate Registrar against
any liability that may result if the transfer is not so exempt or is not made in
accordance with such federal and state laws. Unless the Certificate Registrar
determines otherwise in accordance with applicable law and the rules and
procedures of, or applicable to, the Depository (the "Depository Rules"),
transfers of a beneficial interest in a Book-Entry Certificate representing an
interest in a Non-Registered Certificate that is not rated in one of the top
four categories by a nationally recognized statistical rating organization to
(i) an Institutional Accredited Investor will require delivery in the form of a
Definitive Certificate and the Certificate Registrar shall register such
transfer only upon compliance with the foregoing provisions of this Section
5.02(b) or (ii) a Qualified Institutional Buyer may only be effectuated by means
of an "SRO Rule 144A System" approved for such purpose by the Commission.
(c) With respect to the Subordinate Certificates, no sale, transfer,
pledge or other disposition by any Holder of any such Certificate shall be made
unless the Certificate Registrar shall have received either (i) a representation
letter from the proposed purchaser or transferee of such Certificate
substantially in the form of Exhibit F attached hereto, to the effect that such
proposed purchaser or transferee is NOT (a) an employee benefit plan subject to
the fiduciary responsibility provisions of ERISA or Section 4975 of the Code, or
a governmental plan (as defined in Section 3(32) of ERISA) subject to any
federal, state or local law ("Similar Law") which is, to a material extent,
similar to the foregoing provisions of ERISA or the Code (each a "Plan") or (b)
a person acting on behalf of or using the assets of any such Plan (including an
entity whose underlying assets include Plan assets by reason of investment in
the entity by such Plan and the application of Department of Labor Regulation
ss. 2510.3-101), other than (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 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 Placement Agent, the
Certificate Registrar and/or the Trust Fund. Each Certificate Owner of a
Subordinate Certificate shall be deemed to represent that it is not a Person
specified in clauses (a) or (b) above. Any transfer, sale, pledge or other
disposition of any such Certificates that would constitute or result in a
prohibited transaction under ERISA, Section 4975 of the Code or any Similar Law,
or would otherwise violate the provisions of this Section 5.02(c) shall be
deemed absolutely null and void ab initio, to the extent permitted under
applicable law.
So long as any of the Class of Certificates remains outstanding, the
Master Servicer will make available, or cause to be made available, upon
request, to any Holder and any Person to whom any such Certificate of any such
Class of Certificates may be offered or sold, transferred, pledged or otherwise
disposed of by such Holder, information with respect to the Master Servicer, the
Special Servicer or the Mortgage Loans necessary to the provision of an Opinion
of Counsel described in this Section 5.02(c).
(d) (i) Each Person who has or who acquires any Ownership Interest
in a Residual Certificate shall be deemed by the acceptance or acquisition of
such Ownership Interest to have agreed to be bound by the following provisions
and to have irrevocably authorized the Trustee under clause (ii) below to
deliver payments to a Person other than such Person. The rights of each Person
acquiring any Ownership Interest in a Residual Certificate are expressly subject
to the following provisions:
(A) 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 Certificate 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, 2000, and
shall be required to provide the Depositor, the Master Servicer, the Special
Servicer or the REMIC Administrator with an updated copy of the Certificate
Register at other times promptly upon written request therefor.
(k) If a Person is acquiring any Non-Registered Certificate or
interest therein as a fiduciary or agent for one or more accounts, such Person
shall be required to deliver to the Certificate Registrar (or, in the case of a
Book-Entry Certificate, to the Certificate Owner that is transferring such
interest) a certification to the effect that, and such other evidence as may be
reasonably required by the Trustee (or such Certificate Owner) to confirm that,
it has (i) sole investment discretion with respect to each such account and (ii)
full power to make the acknowledgments, representations, warranties,
certification and agreements with respect to each such account as set forth in
subsections (b), (c) and (d), as applicable, of this Section 5.02.
SECTION 5.03 Book-Entry Certificates.
(a) The Class A-2, Class A-3, Class A-4, Class A-1C, Class A-2C,
Class B, Class C, Class D and Class X Certificates (as of the Second Sequel
Closing Date), the Class A-1 Certificates (as of the First Sequel Closing Date),
and the Class E, Class F, Class G, Class H, Class J and Class K Certificates (as
of the Original Closing Date) 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 this Section 5.03(f), (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.
SECTION 5.07 Regarding the Identification of Certain Certificateholders.
(a) For purposes of determining the identity of the holders of the
Class E, Class F, Class G, Class H, Class J and Class K Certificates to whom
certain reports and other information are required to be delivered hereunder,
the Trustee and the Master Servicer may rely, with respect to any such
Certificates outstanding in book-entry form, on a certification, given to the
Trustee and provided to the Master Servicer, by any Person that such person is
such a holder entitled to receive such reports or information hereunder. From
time to time upon the request of the Master Servicer, the Trustee shall notify
the Master Servicer whether there have been any changes in the identity of such
holders recorded in the Certificate Register.
ARTICLE VI
THE DEPOSITOR, THE MORTGAGE LOAN SELLER, THE MASTER SERVICER, THE SPECIAL
SERVICER AND THE REMIC ADMINISTRATOR
SECTION 6.01 Liability of the Depositor, the Mortgage Loan
Seller, the Master Servicer, the Special Servicer
and the REMIC Administrator.
The Depositor, the Mortgage Loan Seller, the Master Servicer, the
Special Servicer and the REMIC Administrator shall be liable in accordance
herewith only to the extent of the respective obligations specifically imposed
upon and undertaken by the Depositor, the Mortgage Loan Seller, the Master
Servicer, the Special Servicer and the REMIC Administrator herein.
SECTION 6.02 Merger, Consolidation or Conversion of the
Depositor, the Mortgage Loan Seller, the Master
Servicer, the Special Servicer or the REMIC
Administrator.
Subject to the following paragraph, the Depositor, the Mortgage Loan
Seller, the Master Servicer, the Special Servicer and the REMIC Administrator
each will keep in full effect its existence, rights and franchises as a
corporation or other business organization under the laws of the jurisdiction of
its organization, and each will obtain and preserve its qualification to do
business as a foreign corporation or otherwise in each jurisdiction in which
such qualification is or shall be necessary to protect the validity and
enforceability of this Agreement, the Certificates or any of the Mortgage Loans
and to perform its respective duties under this Agreement.
The Depositor, the Mortgage Loan Seller, the Master Servicer, the
Special Servicer and the REMIC Administrator each may be merged or consolidated
with or into any Person, or transfer all or substantially all of its assets
(which, as to the Master Servicer and the Special Servicer, may be limited to
all or substantially all of its assets relating to the business of mortgage loan
servicing) to any Person, in which case any Person resulting from any merger or
consolidation to which the Depositor, the Mortgage Loan Seller, the Master
Servicer, the Special Servicer or the REMIC Administrator shall be a party, or
any Person succeeding to the business of the Depositor, the Mortgage Loan
Seller, the Master Servicer, the Special Servicer or the REMIC Administrator,
shall be the successor of the Depositor, the Mortgage Loan Seller, the Master
Servicer, the Special Servicer or the REMIC Administrator, as the case may be,
hereunder, without the execution or filing of any paper or any further act on
the part of any of the parties hereto, anything herein to the contrary
notwithstanding; provided, however, that no successor or surviving Person shall
succeed to the rights of the Master Servicer, the Special Servicer, or the
Mortgage Loan Seller unless such succession will not result in any downgrade,
qualification (if applicable) or withdrawal of the rating then assigned by any
Rating Agency to any Class of Certificates (as confirmed in writing).
The change in ownership and change of the name of Banc One Mortgage
Capital Markets, LLC (to ORIX Real Estate Capital Markets, LLC) is deemed to be
acceptable and to not result in any downgrade, qualification (if applicable) or
withdrawal of the rating assigned by each Rating Agency to any Class of
Certificate.
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, manager, member, officer, employee or agent
(including Sub-Servicers) 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,
manager, member, officer, employee or agent (including Sub-Servicers) 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 (if applicable) 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 directly related to the servicing of the Mortgage
Loans or to its ability to perform its obligations hereunder 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 any
Emergency Advance (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;
(xii) the Trustee shall have received written notice from DCR or
Fitch 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 (if applicable) or withdrawal of any rating then assigned to
any Class of Certificates; or
(xiii) S&P shall publish or otherwise announce that the Master
Servicer is not an "acceptable" master servicer, or that the Special
Servicer is not an "acceptable" special servicer, for commercial mortgage
loans.
Each Event of Default listed above as items (iv) through (xiii) 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 clauses (xi) or (xiii)) 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 clauses (xi) and (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
(if applicable) 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(g) 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:
(a) 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;
(b) 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;
(c) 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;
(d) 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;
(e) 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;
(f) 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;
(g) 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
(h) 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 "AA" by Fitch, "A" by DCR
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 downgrade,
qualification (if applicable) 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
downgrade, qualification (if applicable) or withdrawal of any of the ratings
then assigned by the Rating Agencies to the Certificates. In case at any time
the Trustee shall cease to be eligible in accordance with the provisions of this
Section, the Trustee shall resign immediately in the manner and with the effect
specified in Section 8.07. The corporation, trust company, bank or banking
association serving as Trustee may have normal banking and trust relationships
with the Depositor, the Mortgage Loan Seller, the Master Servicer, the Special
Servicer, the REMIC Administrator and their respective Affiliates.
SECTION 8.07 Resignation and Removal of the Trustee.
(a) The Trustee may at any time resign and be discharged from the
trusts hereby created by giving written notice thereof to the Depositor, the
Mortgage Loan Seller, the Master Servicer, the Special Servicer, the REMIC
Administrator and to all Certificateholders. Upon receiving such notice of
resignation, the Depositor shall promptly appoint a successor trustee acceptable
to the Master Servicer by written instrument, in duplicate, which instrument
shall be delivered to the resigning Trustee and to the successor trustee. A copy
of such instrument shall be delivered to the Mortgage Loan Seller, the Master
Servicer, the Special Servicer, the REMIC Administrator and the
Certificateholders by the Depositor. If no successor trustee shall have been so
appointed and have accepted appointment within 30 days after the giving of such
notice of resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor trustee.
(b) If at any time the Trustee shall cease to be eligible in
accordance with the provisions of Section 8.06 and shall fail to resign after
written request therefor by the Depositor or the Master Servicer, or if at any
time the Trustee shall become incapable of acting, or shall be adjudged bankrupt
or insolvent, or a receiver of the Trustee or of its property shall be
appointed, or any public officer shall take charge or control of the Trustee or
of its property or affairs for the purpose of rehabilitation, conservation or
liquidation, then the Depositor may remove the Trustee and appoint a successor
trustee acceptable to the Master Servicer by written instrument, in duplicate,
which instrument shall be delivered to the Trustee so removed and to the
successor trustee. A copy of such instrument shall be delivered to the Mortgage
Loan Seller, the Master Servicer, the Special Servicer, the REMIC Administrator
and the Certificateholders by the Depositor.
(c) The Holders of Certificates entitled to at least 33 1/3% of the
Voting Rights may at any time remove the Trustee and appoint a successor trustee
by written instrument or instruments, in triplicate, signed by such Holders or
their attorneys-in-fact duly authorized, one complete set of which instruments
shall be delivered to the Master Servicer, one complete set to the Trustee so
removed and one complete set to the successor so appointed; provided that the
Master Servicer, the Depositor and the remaining Certificateholders shall have
been notified; and provided further that other Holders of the Certificates
entitled to a greater percentage of the Voting Rights shall not have objected to
such removal in writing to the Master Servicer and the Depositor within 30 days
of their receipt of notice thereof. A copy of such instrument shall be delivered
to the Depositor, the Mortgage Loan Seller, the Special Servicer, the REMIC
Administrator and the remaining Certificateholders by the Master Servicer.
(d) Any resignation or removal of the Trustee and appointment of a
successor trustee pursuant to any of the provisions of this Section 8.07 shall
not become effective until acceptance of appointment by the successor trustee as
provided in Section 8.08; and no such resignation or removal of the Trustee
and/or appointment of a successor trustee shall be permitted, unless, as
confirmed in writing by each Rating Agency, such resignation or removal and
appointment would not result in the downgrade, qualification (if applicable) or
withdrawal of the rating assigned by any Rating Agency to any Class of
Certificates.
SECTION 8.08 Successor Trustee.
(a) Any successor trustee appointed as provided in Section 8.07
shall execute, acknowledge and deliver to the Depositor, the Mortgage Loan
Seller, the Master Servicer, the Special Servicer, the REMIC Administrator and
to its predecessor trustee an instrument accepting such appointment hereunder,
and thereupon the resignation or removal of the predecessor trustee shall become
effective and such successor trustee, without any further act, deed or
conveyance, shall become fully vested with all the rights, powers, duties and
obligations of its predecessor hereunder, with the like effect as if originally
named as trustee herein. The predecessor trustee shall deliver to the successor
trustee all Mortgage Files and related documents and statements held by it
hereunder (other than any Mortgage Files and related documents and statements at
the time held on its behalf by a Custodian, which Custodian shall become the
agent of the successor trustee), and the Depositor, the Mortgage Loan Seller,
the Master Servicer, the Special Servicer, the REMIC Administrator and the
predecessor trustee shall execute and deliver such instruments and do such other
things as may reasonably be required to more fully and certainly vest and
confirm in the successor trustee all such rights, powers, duties and
obligations, and to enable the successor trustee to perform its obligations
hereunder. If such predecessor trustee was removed as Trustee under this
Agreement without cause, the cost of any such execution, delivery or action
shall be at the expense of the Trust.
(b) No successor trustee shall accept appointment as provided in
this Section 8.08 unless at the time of such acceptance such successor trustee
shall be eligible under the provisions of Section 8.06.
(c) Upon acceptance of appointment by a successor trustee as
provided in this Section 8.08, the Master Servicer shall mail notice of the
succession of such trustee hereunder to the Depositor and the
Certificateholders. If the Master Servicer fails to mail such notice within 10
days after acceptance of appointment by the successor trustee, the successor
trustee shall cause such notice to be mailed at the expense of the Master
Servicer.
SECTION 8.09 Merger or Consolidation of Trustee.
Any entity into which the Trustee may be merged or converted or with
which it may be consolidated or any entity resulting from any merger, conversion
or consolidation to which the Trustee shall be a party, or any entity succeeding
to the corporate trust business of the Trustee, shall be the successor of the
Trustee, hereunder, without the execution or filing of any paper or any further
act on the part of any of the parties hereto, anything herein to the contrary
notwithstanding; provided that the Trustee shall continue to be eligible under
the provisions of Section 8.06. The successor to the Trustee shall promptly
notify in writing each of the other parties hereto, the Certificateholders and
the Rating Agencies of any such merger, conversion, consolidation or succession
to business.
SECTION 8.10 Appointment of Co-Trustee or Separate Trustee.
(a) Notwithstanding any other provisions hereof, at any time, for
the purpose of meeting any legal requirements of any jurisdiction in which any
part of the Trust Fund or property securing the same may at the time be located,
the Master Servicer and the Trustee acting jointly shall have the power and
shall execute and deliver all instruments to appoint one or more Persons
approved by the Trustee to act as co-trustee or co-trustees, jointly with the
Trustee, or separate trustee or separate trustees, of all or any part of the
Trust Fund, and to vest in such Person or Persons, in such capacity, such title
to the Trust Fund, or any part thereof, and, subject to the other provisions of
this Section 8.10, such powers, duties, obligations, rights and trusts as the
Master Servicer and the Trustee may consider necessary or desirable. If the
Master Servicer shall not have joined in such appointment within 15 days after
the receipt by it of a request to do so, or in case an Event of Default in
respect of the Master Servicer shall have occurred and be continuing, the
Trustee alone shall have the power to make such appointment. No co-trustee or
separate trustee hereunder shall be required to meet the terms of eligibility as
a successor trustee under Section 8.06 hereunder and no notice to Holders of
Certificates of the appointment of co-trustee(s) or separate trustee(s) shall be
required under Section 8.08 hereof.
(b) In the case of any appointment of a co-trustee or separate
trustee pursuant to this Section 8.10 all rights, powers, duties and obligations
conferred or imposed upon the Trustee shall be conferred or imposed upon and
exercised or performed by the Trustee and such separate trustee or co-trustee
jointly, except to the extent that under any law of any jurisdiction in which
any particular act or acts are to be performed (whether as Trustee hereunder or
as successor to the Master Servicer, the Special Servicer or the REMIC
Administrator hereunder), the Trustee shall be incompetent or unqualified to
perform such act or acts, in which event such rights, powers, duties and
obligations (including the holding of title to the Trust Fund or any portion
thereof in any such jurisdiction) shall be exercised and performed by such
separate trustee or co-trustee at the direction of the Trustee.
(c) Any notice, request or other writing given to the Trustee shall
be deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Agreement and
the conditions of this Article VIII. Each separate trustee and co-trustee, upon
its acceptance of the trusts conferred, shall be vested with the estates or
property specified in its instrument of appointment, either jointly with the
Trustee or separately, as may be provided therein, subject to all the provisions
of this Agreement, specifically including every provision of this Agreement
relating to the conduct of, affecting the liability of, or affording protection
to, the Trustee. Every such instrument shall be filed with the Trustee.
(d) Any separate trustee or co-trustee may, at any time, constitute
the Trustee, its agent or attorney-in-fact, with full power and authority, to
the extent not prohibited by law, to do any lawful act under or in respect of
this Agreement on its behalf and in its name. If any separate trustee or
co-trustee shall die, become incapable of acting, resign or be removed, all of
its estates, properties, rights, remedies and trusts shall vest in and be
exercised by the Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee.
(e) The appointment of a co-trustee or separate trustee under this
Section 8.10 shall not relieve the Trustee of its duties, responsibilities or
liabilities hereunder; 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
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 Depositor shall prepare for filing, execute and properly file
with the Commission, the initial 8-K. The Trustee shall, at the expense of the
Depositor, prepare for filing, execute and properly file with the Commission (i)
the Form 10-K, (ii) the form 15 in January 2000 and (iii) the Form 8-K with the
Distribution Date Statements attaching any additional information the Depositor
may require or as 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 (or
readily convertible into 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 (i) 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; and, (ii) promptly
forward copies of any response from the Commission to the Trustee.
SECTION 8.14 Year 2000 Compliance.
The Trustee covenants that by December 31, 1999, any custom-made
software or hardware designed or purchased or licensed by it and used by it in
the course of the operation or management of, or the compiling, reporting or
generation of, data required by this Agreement will be capable of identifying
correctly or performing calculations or other processing accurately with respect
to dates after December 31, 1999.
SECTION 8.15 Maintenance of Mortgage File.
Except for the release of items in the Mortgage File contemplated by
this Agreement, including, without limitation, as necessary for the enforcement
of the holder's rights and remedies under the related Mortgage Loan, the Trustee
covenants and agrees that it shall maintain each Mortgage File in the State of
Minnesota, and that it shall not move any Mortgage File outside the State of
Minnesota unless it shall first obtain and provide, at the expense of the Trust
Fund, an Opinion of Counsel to the Depositor and the Rating Agencies to the
effect that the Trustee's first priority interest in the Mortgage Notes has been
duly and fully perfected under the applicable laws and regulations of such other
jurisdiction.
ARTICLE IX
TERMINATION
SECTION 9.01 Termination Upon Repurchase or Liquidation of All
Mortgage Loans.
Subject to Section 9.02, the Trust and the respective obligations
and responsibilities under this Agreement of the Depositor, the Mortgage Loan
Seller, the Master Servicer, the Special Servicer, the Trustee and the REMIC
Administrator (other than the obligations of the Trustee to provide for and make
payments to Certificateholders as hereafter set forth and the obligations of the
REMIC Administrator to file the final Tax Returns for REMIC I, REMIC II, REMIC
III, REMIC IIIU and REMIC IV 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, the REMIC II Uncertificated Regular Interests, the REMIC III
Uncertificated Regular Interest, the REMIC IIIU Uncertificated Regular Interests
and the REMIC IV Regular Certificates 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,
REMIC III, REMIC IIIU and REMIC IV) 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, REMIC
III, REMIC IIIU or REMIC IV 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, REMIC III, REMIC IIIU and REMIC IV 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, REMIC III, REMIC IIIU and REMIC IV
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, REMIC III, REMIC
IIIU and REMIC IV 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 interest"
(within the meaning of Section 860G(a)(2) of the Code), in REMIC II. The REMIC
III Regular Interests 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. The REMIC IIIU
Uncertificated Regular Interests are hereby designated as the "regular
interests" (within the meaning of Section 860G(a)(1) of the code), and the Class
R-IIIU Certificates are hereby designated as the sole class of "residual
interests" (within the meaning of Section 860G(a)(2) of the Code), in REMIC
IIIU. The REMIC IV Regular Interests are hereby designated as the "regular
interests" (within the meaning of Section 860G(a)(1) of the code), and the Class
R-IV Certificates are hereby designated as the sole class of "residual
interests" (within the meaning of Section 860G(a)(2) of the Code), in REMIC IV.
For the avoidance of doubt, the Class X Certificates represent "specified
portions," within the meaning of Treasury Regulations Section 1.860G-1(a)(2), of
the interest payments on the Class UA-2, Class UA-3, Class UA-4, Class UA-1C,
Class UA-2C, Class MB and Class UX Uncertificated Interests, the Class UX
Uncertificated Interest represents such "specified portions" of the interest
payments on the Class MA-1, Class MA-2 and Class MX Uncertificated Interests and
the Class MX Uncertificated Interest represents such "specified portions" of the
interest payments on the Class LE, Class LF, Class LG, Class LH, Class LJ and
Class LK Uncertificated Interests. 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 any of REMIC I, REMIC II, REMIC III, REMIC IIIU or REMIC IV
(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 First 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
Second Sequel Closing Date is hereby designated as the "startup day" of each of
REMIC IIIU and REMIC IV 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, the REMIC III Regular Interests, the REMIC IIIU
Uncertificated Regular Interests and the REMIC IV Regular Certificates is May
20, 2029, 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, REMIC III, REMIC IIIU and REMIC
IV 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,
REMIC III, REMIC IIIU and REMIC IV 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, REMIC III, REMIC IIIU and REMIC IV. 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 or cause to be
prepared and filed, and the Trustee shall sign, all of the Tax Returns in
respect of each of REMIC I, REMIC II ,REMIC III, REMIC IIIU and REMIC IV. 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 or cause to be performed
on behalf of each of REMIC I, REMIC II, REMIC III, REMIC IIIU and REMIC IV 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, or cause to
be provided: (i) to 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) to 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) with respect to
REMIC II (as to the Unaffected REMIC II Certificates), REMIC III (as to the
Unaffected REMIC III Certificates), and REMIC IV (as to the REMIC IV Regular
Certificates), Form 8811, or other applicable form, to the IRS, and the name,
title, address and telephone number of the Person who will serve as the
representative of REMIC II (as to the Unaffected REMIC II Certificates) and
REMIC III (as to the Unaffected REMIC III Certificates) and REMIC IV (as to the
REMIC IV Regular Certificates).
(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, REMIC III, REMIC IIIU and REMIC IV 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, REMIC III, REMIC
IIIU or REMIC IV 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, REMIC III, REMIC IIIU or REMIC IV, or causing
REMIC I, REMIC II, REMIC III, REMIC IIIU or REMIC IV 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,
REMIC III, REMIC IIIU or REMIC IV 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.
(i) In the event that any tax is imposed on REMIC I, REMIC II,
REMIC III, REMIC IIIU or REMIC IV, 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.
(h) 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, REMIC III, REMIC IIIU or
REMIC IV 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, Class MX
Notional Amount, Class MX Pass-Through Rate, and each category of distribution
on or with respect to the REMIC II Uncertificated Regular Interests. Such
records with respect to REMIC III shall include, for each Distribution Date, the
Class UX Notional Amount, the Class UX Pass-Through Rate and each category of
distribution on or with respect to the Class UX Uncertificated Interest. Such
records with respect to REMIC IIIU shall include, for each Distribution Date,
the applicable Uncertificated Principal Balance, REMIC IIIU Remittance Rate, and
each category of distribution on or with respect to the REMIC IIIU
Uncertificated Regular Interests.
(i) Following the Startup Day therefor, the Trustee shall not accept
any contributions of assets to REMIC I, REMIC II, REMIC III, REMIC IIIU or REMIC
IV 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.
(j) None of the REMIC Administrator, the Master Servicer, the
Special Servicer or the Trustee shall consent to or, to the extent it is within
the control of such Person, permit: (i) the sale or disposition of any of the
Mortgage Loans (except in connection with (A) a breach of any representation or
warranty of the Mortgage Loan Seller regarding the Mortgage Loans or as
otherwise provided for in Section 2.03, (B) the foreclosure, default or imminent
default of a Mortgage Loan, including but not limited to, the sale or other
disposition of a Mortgaged Property acquired by deed-in-lieu of foreclosure, (C)
the bankruptcy of REMIC I, REMIC II, REMIC III, REMIC IIIU or REMIC IV, 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, REMIC III, REMIC IIIU or
REMIC IV 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, REMIC III,
REMIC IIIU or REMIC IV under the REMIC Provisions or other applicable provisions
of federal, state and local law or ordinances.
(k) 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, REMIC III, REMIC
IIIU or REMIC IV 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,
REMIC III, REMIC IIIU or REMIC IV 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, REMIC III,
REMIC IIIU or REMIC IV 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, REMIC III, REMIC IIIU or REMIC IV 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, REMIC III,
REMIC IIIU or REMIC IV; (vi) to modify, add to or eliminate any provisions of
Section 5.02(d)(i), (ii) and (iii); 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 (if
applicable) or withdrawal of any rating then assigned to any Class of
Certificates by any Rating Agency (as evidenced by written confirmation to such
effect from each Rating Agency obtained by or delivered to the Trustee).
(b) This Agreement may also be amended from time to time by the
mutual agreement of the parties hereto, with the consent of the Holders of
Certificates entitled to at least 51% of the Voting Rights allocated to the
affected Classes, for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of this Agreement or of modifying in
any manner the rights of the Holders of Certificates; provided, however, that no
such amendment shall (i) reduce in any manner the amount of, or delay the timing
of, payments received or advanced on the Mortgage Loans and any REO Properties
which are required to be distributed on any Certificate without the written
consent of the Holder of such Certificate, (ii) adversely affect in any material
respect the interests of the Holders of any Class of Certificates in a manner
other than as described in clause (b)(i) without the written consent of the
Holders of all Certificates of such Class, or (iii) modify the provisions of
this Section 11.01 without the written consent of the Holders of all
Certificates then outstanding. Notwithstanding any other provision of this
Agreement, for purposes of the giving or withholding of consents pursuant to
this Section 11.01, Certificates registered in the name of the Depositor, the
Mortgage Loan Seller, the Master Servicer, the Special Servicer or any of their
respective Affiliates shall be entitled to the same Voting Rights with respect
to matters described above as they would if any other Person held such
Certificates. 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
Conduit Mortgage Loans or Portfolio Mortgage 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 downgrade, qualification (if
applicable) or withdrawal of the ratings then assigned to the Class E, Class F,
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, REMIC III, REMIC IIIU or
REMIC IV pursuant to the REMIC Provisions or cause REMIC I, REMIC II, REMIC III,
REMIC IIIU or REMIC IV 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 (d) 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 (d) 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, Bank of America 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,
Bank of America Corporation, Bank of America 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, Bank of America, N.A.,
Bank of America Corporate Center, NC1-007-07-01, 100 North Tryon Street,
Charlotte, North Carolina 28255, Attention: David Gertner, telecopy number:
(704) 386-1904; (3) in the case of the Master Servicer and the Special Servicer,
ORIX Real Estate Capital Markets, LLC, 1717 Main Street, 14th Floor, Dallas,
Texas 75201, Attention: Edgar L. Smith, II, telecopy number (214) 237-2034, with
a copy to ORIX Real Estate Capital Markets, LLC, 1717 Main Street, 12th Floor,
Dallas, Texas 75201, Attention: Paul G. Smyth, telecopy number (214) 237-2040;
(4) 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 1999-2, telecopy number (410) 884-2360; and (5) in the case of the Rating
Agencies, (A) Fitch IBCA, Inc., Commercial Mortgage Surveillance, One State
Street Plaza, New York, New York 10009, Attention: Commercial MBS Monitoring
Department, telecopy number (212) 635-0295; (B) Duff & Phelps Credit Rating Co.,
55 East Monroe Street, Suite 38, Chicago, Illinois 60603, Attention: CMBS
Monitoring Group, telecopy number (312) 263-2852; and (C) Standard & Poor's
Ratings Services, Inc., 55 Water Street, 41st Floor, New York, New York
10041-0003, Attention: Commercial Mortgage Group Surveillance Manager, telecopy
number (212) 438-2662, or as to each such Person such other address as may
hereafter be furnished by such Person to the parties hereto in writing. Any
communication required or permitted to be delivered to a Certificateholder shall
be deemed to have been duly given when mailed first class, postage prepaid, to
the address of such Holder as shown in the Certificate Register.
SECTION 11.06 Severability of Provisions.
If any one or more of the covenants, agreements, provisions or terms
of this Agreement shall be for any reason whatsoever held invalid, then such
covenants, agreements, provisions or terms shall be deemed severable from the
remaining covenants, agreements, provisions or terms of this Agreement and shall
in no way affect the validity or enforceability of the other provisions of this
Agreement or of the Certificates or the rights of the Holders thereof.
SECTION 11.07 Successors and Assigns; Beneficiaries.
The provisions of this Agreement shall be binding upon and inure to
the benefit of the respective successors and assigns of the parties hereto, and
all such provisions shall inure to the benefit of the Certificateholders. Except
as specifically contemplated by Sections 3.22, 3.24, 6.03 and 8.05, no other
person, including, without limitation, any Mortgagor, shall be entitled to any
benefit or equitable right, remedy or claim under this Agreement.
SECTION 11.08 Article and Section Headings.
The article and section headings herein are for convenience of
reference only, and shall not limit or otherwise affect the meaning hereof.
SECTION 11.09 Notices to and from Rating Agencies.
(a) The Trustee shall promptly provide notice to each Rating Agency
with respect to each of the following of which it has actual knowledge:
(i) any material change or amendment to this Agreement;
(ii) the occurrence of any Event of Default hereunder that has
not been cured;
(iii) the resignation or termination of the Master Servicer, the
Special Servicer or the REMIC Administrator and the appointment of a
successor;
(iv) any change in the location of the Distribution Account;
(v) the final payment to any Class of Certificateholders; and
(vi) the repurchase of any Mortgage Loan by the Mortgage Loan
Seller pursuant to Section 2.03.
(b) The Master Servicer shall promptly provide notice to each Rating
Agency with respect to each of the following of which it has actual knowledge:
(i) the resignation or removal of the Trustee and the appointment
of a successor;
(ii) any change in the location of the Certificate Account;
(iii) any event that would result in the voluntary or involuntary
termination of any insurance of the accounts of the Trustee;
(iv) any material casualty at or condemnation or eminent domain
proceeding in respect of a Mortgaged Property;
(v) the vacating by an anchor tenant of a retail Mortgaged
Property;
(vi) for Fitch, any release or substitution of any collateral for
any Mortgage Loan;
(vii) for Fitch, any assumption of any Mortgage Loan, or Loans,
but only if the aggregate Stated Principal Balance of such Mortgage
Loan(s) exceeds two percent (2%) of the Stated Principal Balance of the
Mortgage Pool, or the Mortgage Loan is one of the largest ten (10)
Mortgage Loans in the Mortgage Pool;
(viii) for DCR, any Officer's Certificate delivered by the Master
Servicer to the Trustee;
(ix) for DCR, any extension or modification of a Mortgage Loan's
maturity date; and
(x) for DCR, any modification, waiver or amendment of any term of
any Mortgage Loan.
(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 E, 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.
(h) The Trustee, the Master Servicer and the Special Servicer, as
applicable, shall furnish to each Rating Agency, with respect to each Mortgage
Loan such information as the Rating Agency shall reasonably request and which
the Trustee, the Master Servicer or the Special Servicer can reasonably provide
in accordance with applicable law and without waiving any attorney-client
privilege relating to such information. The Trustee, the Master Servicer and the
Special Servicer, as applicable, may include any reasonable disclaimer they deem
appropriate with respect to such information.
SECTION 11.10 Requests for Information; Standing Requests.
(a) Any Holder of a Class E, Class F, Class G, Class H, Class J or
Class K Certificate shall be entitled to, upon request to the Master Servicer,
receive a copy from the Master Servicer of any notice or report to be delivered
hereunder to the Directing Certificateholder.
(b) For the avoidance of doubt, it is noted that to the extent that
any Rating Agency, or any Holder of a Class E, 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
BANK OF AMERICA, N.A.,
Mortgage Loan Seller
By: /s/ James E. Naumann
-------------------------------
Name: James E. Naumann
Title: Managing Director
ORIX REAL ESTATE CAPITAL MARKETS, LLC,
Master Servicer and Special Servicer
By: /s/ Edgar L. Smith, II
-------------------------------
Name: Edgar L. Smith, II
Title: Chief Operating Officer
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION,
Trustee and REMIC Administrator
By: /s/ Leslie A. Gaskill
-------------------------------
Name: Leslie A. Gaskill
Title: Vice President
<PAGE>
ACKNOWLEDGED AND AGREED WITH RESPECT
TO SECTION 2.01 OF THIS AGREEMENT:
NATIONSBANK COMMERCIAL MORTGAGE OWNER TRUST I
By: Norwest Bank Minnesota, National Association,
its Co-Trustee
By: /s/ Leslie A. Gaskill
-------------------------------
Name: Leslie A. Gaskill
Title: Vice President
<PAGE>
STATE OF NORTH CAROLINA )
) ss.:
COUNTY OF MECKLENBURG )
On the 23rd day of November, 1999, 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 the Managing Director of
BANK OF AMERICA, 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/ Cheryl D. Faust
-------------------------------
Notary Public
[Notarial Seal]
My commission expires:
May 19, 2001
<PAGE>
STATE OF TEXAS )
) ss.:
COUNTY OF DALLAS )
On the 23rd day of November, 1999, before me, a notary public in and
for said State, personally appeared Edgar L. Smith, II, known to me to be a
Chief Operating Officer of ORIX REAL ESTATE CAPITAL MARKETS, LLC, one of the
entities that executed the within instrument, and also known to me to be the
person who executed it on behalf of such entity, and acknowledged to me that
such person executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ Claudia Ryan
-------------------------------
Notary Public
[Notarial Seal]
My commission expires:
September 20, 2002
<PAGE>
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 23rd day of November, 1999, 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 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/ Jack A. Aini
-------------------------------
Notary Public
[Notarial Seal]
My commission expires:
June 9, 2001
<PAGE>
EXHIBIT A-1
FORM OF CLASS A-1 CERTIFICATE
CLASS A-1 COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 1999-2
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
6.478% per annum this Certificate as of the
Sequel Closing Date:
$______________
Date of Amended and Restated Pooling and
Servicing Agreement: Class Principal Balance of all
October 1, 1999 the Class A-1 Certificates as of
the Issue Date: $169,348,093
Cut-off Date: August 1, 1999
Sequel Closing Date: October 14, 1999 Approximate Aggregate unpaid
principal balance of the
First Distribution Date: Mortgage Pool as of the Cut-off
November 22, 1999 Date, after deducting payments
of principal due on or before
Master Servicer: such date (the "Initial Pool
ORIX Real Estate Capital Markets, LLC Balance"): $1,122,153,392
Trustee and REMIC Administrator:
Special Servicer: Norwest Bank Minnesota, National
ORIX Real Estate Capital Markets, LLC Association
Mortgage Loan Seller:
Bank of America, N.A.
Certificate No. A-1-___ CUSIP No. [_______________]
<PAGE>
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN NATIONSLINK
FUNDING CORPORATION, BANK OF AMERICA, N.A., NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, ORIX REAL ESTATE CAPITAL MARKETS, LLC 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.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE AGREEMENT REFERRED TO HEREIN.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF RULE 501 (A)(1), (2), (3) OR (7) OF REGULATION D
UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM THE REGISTRATION
REQUIREMENTS UNDER THE SECURITIES ACT, OR (D) PURSUANT TO ANOTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT IN
EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY THE TRANSFEROR TO
THE TRUSTEE OF A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE LAST PAGE
OF THIS CERTIFICATE.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR INTEREST"
IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
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 Sequel Closing Date by the aggregate principal balance of all the
Certificates of the same Class as this Certificate (their "Class Principal
Balance") as of the Sequel Closing Date) in that certain beneficial ownership
interest in the Trust Fund evidenced by all the Certificates of the same Class
as this Certificate. The Trust Fund was created and the Certificates were issued
pursuant to an Amended and Restated Pooling and Servicing Agreement, dated as
specified above (the "Agreement"), among NationsLink Funding Corporation, as
Depositor, and the Mortgage Loan Seller, Master Servicer, Special Servicer,
Trustee and REMIC Administrator identified above. To the extent not defined
herein, the capitalized terms used herein have the respective meanings assigned
in the Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the 20th day of each month or, if such 20th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date"), commencing on
the first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed pursuant to the
Agreement on the applicable Distribution Date in respect of the Class of
Certificates to which this Certificate belongs. All distributions made under the
Agreement in respect of this Certificate will be made by the Trustee by wire
transfer in immediately available funds to the account of the Person entitled
thereto at a bank or other entity having appropriate facilities therefor, if
such Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate) will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the offices of the Certificate Registrar appointed as provided in the
Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of
the Certificate Principal Balance hereof is binding on such Holder and all
future Holders of this Certificate and any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without
coupons in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer
or exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
Prior to due presentment of this Certificate for registration of
transfer, the Depositor, the Mortgage Loan Seller, the Master Servicer, the
Special Servicer, the Trustee, the REMIC Administrator, the Certificate
Registrar and any agents of any of them may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of the
Depositor, the Mortgage Loan Seller, the Master Servicer, the Special Servicer,
the Trustee, the REMIC Administrator, the Certificate Registrar or any such
agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of (i) the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer or by any Majority
Certificateholder of the Controlling Class (other than the Depositor or the
Mortgage Loan Seller) at a price determined as provided in the Agreement of all
Mortgage Loans and any REO Properties remaining in the Trust Fund. The Agreement
permits, but does not require, any such Majority Certificateholder or the Master
Servicer to purchase from the Trust Fund all Mortgage Loans and any REO
Properties remaining therein. The exercise of such right will effect early
retirement of the Certificates; however, such right to purchase is subject to
the aggregate Stated Principal Balance of the Mortgage Pool at the time of
purchase being less than 1% of the Initial Pool Balance specified on the face
hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Mortgage Loan Seller, the Master Servicer, the Special Servicer,
the Trustee and the REMIC Administrator thereunder and the rights of the
Certificateholders thereunder, at any time by the Depositor, the Mortgage Loan
Seller, the Master Servicer, the Special Servicer, the Trustee and the REMIC
Administrator with the consent of the Holders of Certificates entitled to at
least 51% of the Voting Rights allocated to the affected Classes. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain circumstances,
including any amendment necessary to maintain the status of REMIC I, 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>
SCHEDULE A
CERTIFICATE BALANCE OF
DEFINITIVE CERTIFICATES
EXCHANGED OR TRANSFERRED
FOR, OR ISSUED IN EXCHANGE
FOR OR UPON TRANSFER OF, AN REMAINING PRINCIPAL
INTEREST IN THIS BOOK- AMOUNT OF BOOK-ENTRY NOTATION
DATE ENTRY CERTIFICATE 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-2
FORM OF CLASS A-2 CERTIFICATE
CLASS A-2 COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 1999-2
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
6.8460% per annum this Certificate as of the Issue
Date:
$______________
Date of Second Amended and Restated Pooling
and Servicing Agreement: November 1, 1999 Class Principal Balance of all
the Class A-2 Certificates as of
Cut-off Date: November 10, 1999 the Issue Date: $84,648,789
Issue Date: November 23, 1999 Approximate Aggregate unpaid
principal balance of the
First Distribution Date: Mortgage Pool as of the Cut-off
December 20, 1999 Date, after deducting payments
of principal due on or before
Master Servicer: such date (the "Initial Pool
ORIX Real Estate Capital Markets, LLC Balance"): $1,115,186,748
Trustee and REMIC Administrator:
Special Servicer: Norwest Bank Minnesota, National
ORIX Real Estate Capital Markets, LLC Association
Mortgage Loan Seller:
Bank of America, N.A.
Certificate No. A-2-__ CUSIP No. [_______________]
<PAGE>
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN NATIONSLINK
FUNDING CORPORATION, BANK OF AMERICA, N.A., NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, ORIX REAL ESTATE CAPITAL MARKETS, LLC OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY
ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR INTEREST"
IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
principal balance of this Certificate (its "Certificate Principal Balance") as
of the Issue Date by the aggregate principal balance of all the Certificates of
the same Class as this Certificate (their "Class Principal Balance") as of the
Issue Date) in that certain beneficial ownership interest in the Trust Fund
evidenced by all the Certificates of the same Class as this Certificate. The
Trust Fund was created and the Certificates were issued pursuant to a Pooling
and Servicing Agreement, dated as specified above (the "Agreement"), among
NationsLink Funding Corporation, as Depositor, and the Mortgage Loan Seller,
Master Servicer, Special Servicer, Trustee and REMIC Administrator identified
above. To the extent not defined herein, the capitalized terms used herein have
the respective meanings assigned in the Agreement. This Certificate is issued
under and is subject to the terms, provisions and conditions of the Agreement,
to which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the 20th day of each month or, if such 20th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date"), commencing on
the first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed pursuant to the
Agreement on the applicable Distribution Date in respect of the Class of
Certificates to which this Certificate belongs. All distributions made under the
Agreement in respect of this Certificate will be made by the Trustee by wire
transfer in immediately available funds to the account of the Person entitled
thereto at a bank or other entity having appropriate facilities therefor, if
such Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate) will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the offices of the Certificate Registrar appointed as provided in the
Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of
the Certificate Principal Balance hereof is binding on such Holder and all
future Holders of this Certificate and any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without
coupons in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer
or exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
Prior to due presentment of this Certificate for registration of
transfer, the Depositor, the Mortgage Loan Seller, the Master Servicer, the
Special Servicer, the Trustee, the REMIC Administrator, the Certificate
Registrar and any agents of any of them may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of the
Depositor, the Mortgage Loan Seller, the Master Servicer, the Special Servicer,
the Trustee, the REMIC Administrator, the Certificate Registrar or any such
agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of (i) the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer or by any Majority
Certificateholder of the Controlling Class (other than the Depositor or the
Mortgage Loan Seller) at a price determined as provided in the Agreement of all
Mortgage Loans and any REO Properties remaining in the Trust Fund. The Agreement
permits, but does not require, any such Majority Certificateholder or the Master
Servicer to purchase from the Trust Fund all Mortgage Loans and any REO
Properties remaining therein. The exercise of such right will effect early
retirement of the Certificates; however, such right to purchase is subject to
the aggregate Stated Principal Balance of the Mortgage Pool at the time of
purchase being less than 1% of the Initial Pool Balance specified on the face
hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Mortgage Loan Seller, the Master Servicer, the Special Servicer,
the Trustee and the REMIC Administrator thereunder and the rights of the
Certificateholders thereunder, at any time by the Depositor, the Mortgage Loan
Seller, the Master Servicer, the Special Servicer, the Trustee and the REMIC
Administrator with the consent of the Holders of Certificates entitled to at
least 51% of the Voting Rights allocated to the affected Classes. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain circumstances,
including any amendment necessary to maintain the status of REMIC I, REMIC II,
REMIC III, REMIC IIIU, or REMIC IV as a REMIC, without the consent of the
Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York that are applicable to agreements negotiated, made
and to be performed in said State, and the obligations, rights and remedies of
the Holder hereof shall be determined in accordance with such laws.
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
Norwest Bank Minnesota, National
Association,
as Trustee
By:_______________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-2 Certificates referred to in the
within-mentioned Agreement.
Dated:
Norwest Bank Minnesota, National
Association,
as Certificate Registrar
By:_______________________________________
Authorized Officer
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _____________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee) the beneficial ownership interest in the Trust Fund evidenced by the
within Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to the above
named assignee and delivery of such Commercial Mortgage Pass-Through Certificate
to the following address: ______________________________________________________
Dated:
____________________________________________
Signature by or on behalf of Assignor
____________________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to _________________________________
for the account of _________________________________________________________.
Distributions made by check (such check to be made payable to
_______________________________) and all applicable statements and notices
should be mailed to ______________________________________________________.
This information is provided by ___________________________________,
the assignee named above, or ______________________________________, as its
agent.
<PAGE>
EXHIBIT A-3
FORM OF CLASS A-3 CERTIFICATE
CLASS A-3 COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 1999-2
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 Second Amended and Restated Pooling
and Servicing Agreement: November 1, 1999 Class Principal Balance of all
the Class A-3 Certificates as of
Cut-off Date: November 10, 1999 the Issue Date: $232,000,439
Issue Date: November 23, 1999 Approximate Aggregate unpaid
principal balance of the
First Distribution Date: Mortgage Pool as of the Cut-off
December 20, 1999 Date, after deducting payments
of principal due on or before
Master Servicer: such date (the "Initial Pool
ORIX Real Estate Capital Markets, LLC Balance"): $1,115,186,748
Trustee and REMIC Administrator:
Special Servicer: Norwest Bank Minnesota, National
ORIX Real Estate Capital Markets, LLC Association
Mortgage Loan Seller:
Bank of America, N.A.
Certificate No. A-3-__ CUSIP No. [_______________]
<PAGE>
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN NATIONSLINK
FUNDING CORPORATION, BANK OF AMERICA, N.A., NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, ORIX REAL ESTATE CAPITAL MARKETS, LLC OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY
ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR INTEREST"
IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
principal balance of this Certificate (its "Certificate Principal Balance") as
of the Issue Date by the aggregate principal balance of all the Certificates of
the same Class as this Certificate (their "Class Principal Balance") as of the
Issue Date) in that certain beneficial ownership interest in the Trust Fund
evidenced by all the Certificates of the same Class as this Certificate. The
Trust Fund was created and the Certificates were issued pursuant to a Pooling
and Servicing Agreement, dated as specified above (the "Agreement"), among
NationsLink Funding Corporation, as Depositor, and the Mortgage Loan Seller,
Master Servicer, Special Servicer, Trustee and REMIC Administrator identified
above. To the extent not defined herein, the capitalized terms used herein have
the respective meanings assigned in the Agreement. This Certificate is issued
under and is subject to the terms, provisions and conditions of the Agreement,
to which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the 20th day of each month or, if such 20th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date"), commencing on
the first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed pursuant to the
Agreement on the applicable Distribution Date in respect of the Class of
Certificates to which this Certificate belongs. All distributions made under the
Agreement in respect of this Certificate will be made by the Trustee by wire
transfer in immediately available funds to the account of the Person entitled
thereto at a bank or other entity having appropriate facilities therefor, if
such Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate) will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the offices of the Certificate Registrar appointed as provided in the
Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of
the Certificate Principal Balance hereof is binding on such Holder and all
future Holders of this Certificate and any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without
coupons in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer
or exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
Prior to due presentment of this Certificate for registration of
transfer, the Depositor, the Mortgage Loan Seller, the Master Servicer, the
Special Servicer, the Trustee, the REMIC Administrator, the Certificate
Registrar and any agents of any of them may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of the
Depositor, the Mortgage Loan Seller, the Master Servicer, the Special Servicer,
the Trustee, the REMIC Administrator, the Certificate Registrar or any such
agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of (i) the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer or by any Majority
Certificateholder of the Controlling Class (other than the Depositor or the
Mortgage Loan Seller) at a price determined as provided in the Agreement of all
Mortgage Loans and any REO Properties remaining in the Trust Fund. The Agreement
permits, but does not require, any such Majority Certificateholder or the Master
Servicer to purchase from the Trust Fund all Mortgage Loans and any REO
Properties remaining therein. The exercise of such right will effect early
retirement of the Certificates; however, such right to purchase is subject to
the aggregate Stated Principal Balance of the Mortgage Pool at the time of
purchase being less than 1% of the Initial Pool Balance specified on the face
hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Mortgage Loan Seller, the Master Servicer, the Special Servicer,
the Trustee and the REMIC Administrator thereunder and the rights of the
Certificateholders thereunder, at any time by the Depositor, the Mortgage Loan
Seller, the Master Servicer, the Special Servicer, the Trustee and the REMIC
Administrator with the consent of the Holders of Certificates entitled to at
least 51% of the Voting Rights allocated to the affected Classes. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain circumstances,
including any amendment necessary to maintain the status of REMIC I, REMIC II,
REMIC III, REMIC IIIU, or REMIC IV as a REMIC, without the consent of the
Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York that are applicable to agreements negotiated, made
and to be performed in said State, and the obligations, rights and remedies of
the Holder hereof shall be determined in accordance with such laws.
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
Norwest Bank Minnesota, National
Association,
as Trustee
By:_______________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-3 Certificates referred to in the
within-mentioned Agreement.
Dated:
Norwest Bank Minnesota, National
Association,
as Certificate Registrar
By:_______________________________________
Authorized Officer
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ______________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee) the beneficial ownership interest in the Trust Fund evidenced by the
within Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to the above
named assignee and delivery of such Commercial Mortgage Pass-Through Certificate
to the following address: ______________________________________________________
Dated:
____________________________________________
Signature by or on behalf of Assignor
____________________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to ________________________________
for the account of _________________________________________________________.
Distributions made by check (such check to be made payable to
_______________________________) and all applicable statements and notices
should be mailed to ______________________________________________________.
This information is provided by ___________________________________,
the assignee named above, or ______________________________________, as its
agent.
<PAGE>
EXHIBIT A-4
FORM OF CLASS A-4 CERTIFICATE
CLASS A-4 COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 1999-2
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 Second Amended and Restated Pooling
and Servicing Agreement: November 1, 1999 Class Principal Balance of all
the Class A-4 Certificates as of
Cut-off Date: November 10, 1999 the Issue Date: $110,485,256
Issue Date: November 23, 1999 Approximate Aggregate unpaid
principal balance of the
First Distribution Date: Mortgage Pool as of the Cut-off
December 20, 1999 Date, after deducting payments
of principal due on or before
Master Servicer: such date (the "Initial Pool
ORIX Real Estate Capital Markets, LLC Balance"): $1,115,186,748
Trustee and REMIC Administrator:
Special Servicer: Norwest Bank Minnesota, National
ORIX Real Estate Capital Markets, LLC Association
Mortgage Loan Seller:
Bank of America, N.A.
Certificate No. A-4-__ CUSIP No. [_______________]
<PAGE>
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN NATIONSLINK
FUNDING CORPORATION, BANK OF AMERICA, N.A., NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, ORIX REAL ESTATE CAPITAL MARKETS, LLC OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY
ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR INTEREST"
IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
principal balance of this Certificate (its "Certificate Principal Balance") as
of the Issue Date by the aggregate principal balance of all the Certificates of
the same Class as this Certificate (their "Class Principal Balance") as of the
Issue Date) in that certain beneficial ownership interest in the Trust Fund
evidenced by all the Certificates of the same Class as this Certificate. The
Trust Fund was created and the Certificates were issued pursuant to a Pooling
and Servicing Agreement, dated as specified above (the "Agreement"), among
NationsLink Funding Corporation, as Depositor, and the Mortgage Loan Seller,
Master Servicer, Special Servicer, Trustee and REMIC Administrator identified
above. To the extent not defined herein, the capitalized terms used herein have
the respective meanings assigned in the Agreement. This Certificate is issued
under and is subject to the terms, provisions and conditions of the Agreement,
to which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the 20th day of each month or, if such 20th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date"), commencing on
the first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed pursuant to the
Agreement on the applicable Distribution Date in respect of the Class of
Certificates to which this Certificate belongs. All distributions made under the
Agreement in respect of this Certificate will be made by the Trustee by wire
transfer in immediately available funds to the account of the Person entitled
thereto at a bank or other entity having appropriate facilities therefor, if
such Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate) will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the offices of the Certificate Registrar appointed as provided in the
Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of
the Certificate Principal Balance hereof is binding on such Holder and all
future Holders of this Certificate and any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without
coupons in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer
or exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
Prior to due presentment of this Certificate for registration of
transfer, the Depositor, the Mortgage Loan Seller, the Master Servicer, the
Special Servicer, the Trustee, the REMIC Administrator, the Certificate
Registrar and any agents of any of them may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of the
Depositor, the Mortgage Loan Seller, the Master Servicer, the Special Servicer,
the Trustee, the REMIC Administrator, the Certificate Registrar or any such
agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of (i) the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer or by any Majority
Certificateholder of the Controlling Class (other than the Depositor or the
Mortgage Loan Seller) at a price determined as provided in the Agreement of all
Mortgage Loans and any REO Properties remaining in the Trust Fund. The Agreement
permits, but does not require, any such Majority Certificateholder or the Master
Servicer to purchase from the Trust Fund all Mortgage Loans and any REO
Properties remaining therein. The exercise of such right will effect early
retirement of the Certificates; however, such right to purchase is subject to
the aggregate Stated Principal Balance of the Mortgage Pool at the time of
purchase being less than 1% of the Initial Pool Balance specified on the face
hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Mortgage Loan Seller, the Master Servicer, the Special Servicer,
the Trustee and the REMIC Administrator thereunder and the rights of the
Certificateholders thereunder, at any time by the Depositor, the Mortgage Loan
Seller, the Master Servicer, the Special Servicer, the Trustee and the REMIC
Administrator with the consent of the Holders of Certificates entitled to at
least 51% of the Voting Rights allocated to the affected Classes. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain circumstances,
including any amendment necessary to maintain the status of REMIC I, REMIC II,
REMIC III, REMIC IIIU, or REMIC IV 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.
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-4 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 A-5 CERTIFICATE
CLASS A-5 COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 1999-2
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 Second Amended and Restated Pooling
and Servicing Agreement: August 1, 1999 Class Principal Balance of all
the Class A-5 Certificates as of
Cut-off Date: August 1, 1999 the Issue Date: $114,901,548
Issue Date: August 17, 1999 Approximate Aggregate unpaid
principal balance of the
First Distribution Date: Mortgage Pool as of the Cut-off
September 20, 1999 Date, after deducting payments
of principal due on or before
Master Servicer: such date (the "Initial Pool
ORIX Real Estate Capital Markets, LLC Balance"): $1,122,153,392
Trustee and REMIC Administrator:
Special Servicer: Norwest Bank Minnesota, National
ORIX Real Estate Capital Markets, LLC Association
Mortgage Loan Seller:
Bank of America, N.A.
Certificate No. A-5-__ CUSIP No. [_______________]
<PAGE>
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN NATIONSLINK
FUNDING CORPORATION, BANK OF AMERICA, N.A., NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, ORIX REAL ESTATE CAPITAL MARKETS, LLC 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.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE AGREEMENT REFERRED TO HEREIN.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF RULE 501 (A)(1), (2), (3) OR (7) OF REGULATION D
UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM THE REGISTRATION
REQUIREMENTS UNDER THE SECURITIES ACT, OR (D) PURSUANT TO ANOTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT IN
EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY THE TRANSFEROR TO
THE TRUSTEE OF A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE LAST PAGE
OF THIS CERTIFICATE.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR INTEREST"
IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that [__________] 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,
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 Master Servicer, the
Special Servicer, the Trustee, the REMIC Administrator, the Certificate
Registrar and any agents of any of them may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of the
Depositor, the Mortgage Loan Seller, the Master Servicer, the Special Servicer,
the Trustee, the REMIC Administrator, the Certificate Registrar or any such
agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of (i) the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer or by any Majority
Certificateholder of the Controlling Class (other than the Depositor or the
Mortgage Loan Seller) at a price determined as provided in the Agreement of all
Mortgage Loans and any REO Properties remaining in the Trust Fund. The Agreement
permits, but does not require, any such Majority Certificateholder or the Master
Servicer to purchase from the Trust Fund all Mortgage Loans and any REO
Properties remaining therein. The exercise of such right will effect early
retirement of the Certificates; however, such right to purchase is subject to
the aggregate Stated Principal Balance of the Mortgage Pool at the time of
purchase being less than 1% of the Initial Pool Balance specified on the face
hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Mortgage Loan Seller, the Master Servicer, the Special Servicer,
the Trustee and the REMIC Administrator thereunder and the rights of the
Certificateholders thereunder, at any time by the Depositor, the Mortgage Loan
Seller, the Master Servicer, the Special Servicer, the Trustee and the REMIC
Administrator with the consent of the Holders of Certificates entitled to at
least 51% of the Voting Rights allocated to the affected Classes. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain circumstances,
including any amendment necessary to maintain the status of REMIC I or REMIC II
as a REMIC, without the consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York that are applicable to agreements negotiated, made
and to be performed in said State, and the obligations, rights and remedies of
the Holder hereof shall be determined in accordance with such laws.
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
Norwest Bank Minnesota, National
Association,
as Trustee
By:_______________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-5 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-1C
FORM OF CLASS A-1C CERTIFICATE
CLASS A-1C COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 1999-2
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
7.0300% per annum this Certificate as of the Issue
Date:
$______________
Date of Second Amended and Restated Pooling
and Servicing Agreement: November 1, 1999 Class Principal Balance of all
the Class A-1C Certificates as
Cut-off Date: November 10, 1999 of the Issue Date: $103,960,279
Issue Date: November 23, 1999 Approximate Aggregate unpaid
principal balance of the
First Distribution Date: Mortgage Pool as of the Cut-off
December 20, 1999 Date, after deducting payments
of principal due on or before
Master Servicer: such date (the "Initial Pool
ORIX Real Estate Capital Markets, LLC Balance"): $1,115,186,748
Trustee and REMIC Administrator:
Special Servicer: Norwest Bank Minnesota, National
ORIX Real Estate Capital Markets, LLC Association
Mortgage Loan Seller:
Bank of America, N.A.
Certificate No. A-1C-__ CUSIP No. [_______________]
<PAGE>
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN NATIONSLINK
FUNDING CORPORATION, BANK OF AMERICA, N.A., NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, ORIX REAL ESTATE CAPITAL MARKETS, LLC OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY
ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR INTEREST"
IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
principal balance of this Certificate (its "Certificate Principal Balance") as
of the Issue Date by the aggregate principal balance of all the Certificates of
the same Class as this Certificate (their "Class Principal Balance") as of the
Issue Date) in that certain beneficial ownership interest in the Trust Fund
evidenced by all the Certificates of the same Class as this Certificate. The
Trust Fund was created and the Certificates were issued pursuant to a Pooling
and Servicing Agreement, dated as specified above (the "Agreement"), among
NationsLink Funding Corporation, as Depositor, and the Mortgage Loan Seller,
Master Servicer, Special Servicer, Trustee and REMIC Administrator identified
above. To the extent not defined herein, the capitalized terms used herein have
the respective meanings assigned in the Agreement. This Certificate is issued
under and is subject to the terms, provisions and conditions of the Agreement,
to which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the 20th day of each month or, if such 20th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date"), commencing on
the first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed pursuant to the
Agreement on the applicable Distribution Date in respect of the Class of
Certificates to which this Certificate belongs. All distributions made under the
Agreement in respect of this Certificate will be made by the Trustee by wire
transfer in immediately available funds to the account of the Person entitled
thereto at a bank or other entity having appropriate facilities therefor, if
such Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate) will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the offices of the Certificate Registrar appointed as provided in the
Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of
the Certificate Principal Balance hereof is binding on such Holder and all
future Holders of this Certificate and any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without
coupons in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer
or exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
Prior to due presentment of this Certificate for registration of
transfer, the Depositor, the Mortgage Loan Seller, the Master Servicer, the
Special Servicer, the Trustee, the REMIC Administrator, the Certificate
Registrar and any agents of any of them may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of the
Depositor, the Mortgage Loan Seller, the Master Servicer, the Special Servicer,
the Trustee, the REMIC Administrator, the Certificate Registrar or any such
agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of (i) the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer or by any Majority
Certificateholder of the Controlling Class (other than the Depositor or the
Mortgage Loan Seller) at a price determined as provided in the Agreement of all
Mortgage Loans and any REO Properties remaining in the Trust Fund. The Agreement
permits, but does not require, any such Majority Certificateholder or the Master
Servicer to purchase from the Trust Fund all Mortgage Loans and any REO
Properties remaining therein. The exercise of such right will effect early
retirement of the Certificates; however, such right to purchase is subject to
the aggregate Stated Principal Balance of the Mortgage Pool at the time of
purchase being less than 1% of the Initial Pool Balance specified on the face
hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Mortgage Loan Seller, the Master Servicer, the Special Servicer,
the Trustee and the REMIC Administrator thereunder and the rights of the
Certificateholders thereunder, at any time by the Depositor, the Mortgage Loan
Seller, the Master Servicer, the Special Servicer, the Trustee and the REMIC
Administrator with the consent of the Holders of Certificates entitled to at
least 51% of the Voting Rights allocated to the affected Classes. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain circumstances,
including any amendment necessary to maintain the status of REMIC I, REMIC II,
REMIC III, REMIC IIIU, or REMIC IV 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-1C 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-2C
FORM OF CLASS A-2C CERTIFICATE
CLASS A-2C COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 1999-2
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 Second Amended and Restated Pooling
and Servicing Agreement: November 1, 1999 Class Principal Balance of all
the Class A-2C Certificates as
Cut-off Date: November 10, 1999 of the Issue Date: $114,048,463
Issue Date: November 23, 1999 Approximate Aggregate unpaid
principal balance of the
First Distribution Date: Mortgage Pool as of the Cut-off
December 20, 1999 Date, after deducting payments
of principal due on or before
Master Servicer: such date (the "Initial Pool
ORIX Real Estate Capital Markets, LLC Balance"): $1,115,186,748
Trustee and REMIC Administrator:
Special Servicer: Norwest Bank Minnesota, National
ORIX Real Estate Capital Markets, LLC Association
Mortgage Loan Seller:
Bank of America, N.A.
Certificate No. A-2C-__ CUSIP No. [_______________]
<PAGE>
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN NATIONSLINK
FUNDING CORPORATION, BANK OF AMERICA, N.A., NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, ORIX REAL ESTATE CAPITAL MARKETS, LLC OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY
ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR INTEREST"
IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
principal balance of this Certificate (its "Certificate Principal Balance") as
of the Issue Date by the aggregate principal balance of all the Certificates of
the same Class as this Certificate (their "Class Principal Balance") as of the
Issue Date) in that certain beneficial ownership interest in the Trust Fund
evidenced by all the Certificates of the same Class as this Certificate. The
Trust Fund was created and the Certificates were issued pursuant to a Pooling
and Servicing Agreement, dated as specified above (the "Agreement"), among
NationsLink Funding Corporation, as Depositor, and the Mortgage Loan Seller,
Master Servicer, Special Servicer, Trustee and REMIC Administrator identified
above. To the extent not defined herein, the capitalized terms used herein have
the respective meanings assigned in the Agreement. This Certificate is issued
under and is subject to the terms, provisions and conditions of the Agreement,
to which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the 20th day of each month or, if such 20th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date"), commencing on
the first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed pursuant to the
Agreement on the applicable Distribution Date in respect of the Class of
Certificates to which this Certificate belongs. All distributions made under the
Agreement in respect of this Certificate will be made by the Trustee by wire
transfer in immediately available funds to the account of the Person entitled
thereto at a bank or other entity having appropriate facilities therefor, if
such Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate) will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the offices of the Certificate Registrar appointed as provided in the
Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of
the Certificate Principal Balance hereof is binding on such Holder and all
future Holders of this Certificate and any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without
coupons in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer
or exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
Prior to due presentment of this Certificate for registration of
transfer, the Depositor, the Mortgage Loan Seller, the Master Servicer, the
Special Servicer, the Trustee, the REMIC Administrator, the Certificate
Registrar and any agents of any of them may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of the
Depositor, the Mortgage Loan Seller, the Master Servicer, the Special Servicer,
the Trustee, the REMIC Administrator, the Certificate Registrar or any such
agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of (i) the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer or by any Majority
Certificateholder of the Controlling Class (other than the Depositor or the
Mortgage Loan Seller) at a price determined as provided in the Agreement of all
Mortgage Loans and any REO Properties remaining in the Trust Fund. The Agreement
permits, but does not require, any such Majority Certificateholder or the Master
Servicer to purchase from the Trust Fund all Mortgage Loans and any REO
Properties remaining therein. The exercise of such right will effect early
retirement of the Certificates; however, such right to purchase is subject to
the aggregate Stated Principal Balance of the Mortgage Pool at the time of
purchase being less than 1% of the Initial Pool Balance specified on the face
hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Mortgage Loan Seller, the Master Servicer, the Special Servicer,
the Trustee and the REMIC Administrator thereunder and the rights of the
Certificateholders thereunder, at any time by the Depositor, the Mortgage Loan
Seller, the Master Servicer, the Special Servicer, the Trustee and the REMIC
Administrator with the consent of the Holders of Certificates entitled to at
least 51% of the Voting Rights allocated to the affected Classes. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain circumstances,
including any amendment necessary to maintain the status of REMIC I, REMIC II,
REMIC III, REMIC IIIU, or REMIC IV 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-2C 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 X CERTIFICATE
CLASS X COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 1999-2
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 Second Amended and Restated Pooling
and Servicing Agreement: November 1, 1999 Class Notional Amount of all the
Class X Certificates as of the
Cut-off Date: November 10, 1999 Issue Date: $1,115,186,727
Issue Date: November 23, 1999 Approximate Aggregate unpaid
principal balance of the
First Distribution Date: Mortgage Pool as of the Cut-off
December 20, 1999 Date, after deducting payments
of principal due on or before
Master Servicer: such date (the "Initial Pool
ORIX Real Estate Capital Markets, LLC Balance"): $1,115,186,748
Trustee and REMIC Administrator:
Special Servicer: Norwest Bank Minnesota, National
ORIX Real Estate Capital Markets, LLC Association
Mortgage Loan Seller:
Bank of America, N.A.
Certificate No. X-__ CUSIP No. [_______________]
<PAGE>
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN NATIONSLINK
FUNDING CORPORATION, BANK OF AMERICA, N.A., NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, ORIX REAL ESTATE CAPITAL MARKETS, LLC 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.
THIS CERTIFICATE IS ISSUED ON NOVEMBER 23, 1999, AT AN ISSUE PRICE OF 3.19983%
OF THE INITIAL CLASS X NOTIONAL AMOUNT, INCLUDING ACCRUED INTEREST, AND A STATED
REDEMPTION PRICE AT MATURITY EQUAL TO ALL INTEREST DISTRIBUTIONS EXPECTED TO BE
RECEIVED 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 0% CONSTANT
PREPAYMENT RATE FOR THE CONDUIT MORTGAGE LOANS AND 6% CONSTANT PREPAYMENT RATE
FOR THE PORTFOLIO MORTGAGE LOANS USED TO PRICE THIS CERTIFICATE: (I) THE AMOUNT
OF OID AS A PERCENTAGE OF THE INITIAL CLASS X NOTIONAL AMOUNT IS APPROXIMATELY
1.47608888%; (II) THE ANNUAL YIELD TO MATURITY OF THIS CERTIFICATE, COMPOUNDED
MONTHLY, IS APPROXIMATELY 11.56%; AND (III) THE AMOUNT OF OID ALLOCABLE TO THE
SHORT FIRST ACCRUAL PERIOD (NOVEMBER 23, 1999 TO DECEMBER 20, 1999) AS A
PERCENTAGE OF THE INITIAL CLASS X NOTIONAL AMOUNT, CALCULATED USING THE EXACT
METHOD, IS APPROXIMATELY 0.02773975%.
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 (the
"Agreement"), among NationsLink Funding Corporation, as Depositor, and the
Mortgage Loan Seller, Master Servicer, Special Servicer, Trustee and REMIC
Administrator identified above. To the extent not defined herein, the
capitalized terms used herein have the respective meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the 20th day of each month or, if such 20th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date"), commencing on
the first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed pursuant to the
Agreement on the applicable Distribution Date in respect of the Class of
Certificates to which this Certificate belongs. All distributions made under the
Agreement in respect of this Certificate will be made by the Trustee by wire
transfer in immediately available funds to the account of the Person entitled
thereto at a bank or other entity having appropriate facilities therefor, if
such Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate will be made after due notice by the Trustee of the pendency of such
distribution and only upon presentation and surrender of this Certificate at the
offices of the Certificate Registrar appointed as provided in the Agreement or
such other location as may be specified in such notice.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without
coupons in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer
or exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
Prior to due presentment of this Certificate for registration of
transfer, the Depositor, the Mortgage Loan Seller, the Master Servicer, the
Special Servicer, the Trustee, the REMIC Administrator, the Certificate
Registrar and any agents of any of them may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of the
Depositor, the Mortgage Loan Seller, the Master Servicer, the Special Servicer,
the Trustee, the REMIC Administrator, the Certificate Registrar or any such
agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of (i) the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer or by any Majority
Certificateholder of the Controlling Class (other than the Depositor or the
Mortgage Loan Seller) at a price determined as provided in the Agreement of all
Mortgage Loans and any REO Properties remaining in the Trust Fund. The Agreement
permits, but does not require, any such Majority Certificateholder or the Master
Servicer to purchase from the Trust Fund all Mortgage Loans and any REO
Properties remaining therein. The exercise of such right will effect early
retirement of the Certificates; however, such right to purchase is subject to
the aggregate Stated Principal Balance of the Mortgage Pool at the time of
purchase being less than 1% of the Initial Pool Balance specified on the face
hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Mortgage Loan Seller, the Master Servicer, the Special Servicer,
the Trustee, and the REMIC Administrator thereunder and the rights of the
Certificateholders thereunder, at any time by the Depositor, the Mortgage Loan
Seller, the Master Servicer, the Special Servicer, the Trustee and the REMIC
Administrator with the consent of the Holders of Certificates entitled to at
least 51% of the Voting Rights allocated to the affected Classes. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain circumstances,
including any amendment necessary to maintain the status of REMIC I, REMIC II,
REMIC III, REMIC IIIU, or REMIC IV 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 ______________________________ or
the account of ______________________________________________.
Distributions made by check (such check to be made payable to
_______________________________) and all applicable statements and notices
should be mailed to _________________________________________________________.
This information is provided by _________________________, the
assignee named above, or ______________________________________, as its agent.
<PAGE>
EXHIBIT A-7
FORM OF CLASS B CERTIFICATE
CLASS B COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 1999-2
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 Second Amended and Restated Pooling
and Servicing Agreement: November 1, 1999 Class Principal Balance of all
the Class B Certificates as of
Cut-off Date: November 10, 1999 the Issue Date: $56,107,669
Issue Date: November 23, 1999 Approximate Aggregate unpaid
principal balance of the
First Distribution Date: Mortgage Pool as of the Cut-off
December 20, 1999 Date, after deducting payments
of principal due on or before
Master Servicer: such date (the "Initial Pool
ORIX Real Estate Capital Markets, LLC Balance"): $1,115,186,748
Trustee and REMIC Administrator:
Special Servicer: Norwest Bank Minnesota, National
ORIX Real Estate Capital Markets, LLC Association
Mortgage Loan Seller:
Bank of America, N.A.
Certificate No. B-____ CUSIP No. [_______________]
<PAGE>
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN NATIONSLINK
FUNDING CORPORATION, BANK OF AMERICA, N.A., NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, ORIX REAL ESTATE CAPITAL MARKETS, LLC OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY
ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (I) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR A GOVERNMENTAL PLAN
(AS DEFINED IN SECTION 3(32) OF ERISA) SUBJECT TO ANY FEDERAL, STATE OR LOCAL
LAW ("SIMILAR LAW") WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING
PROVISIONS OF ERISA OR THE CODE (EACH A "PLAN") OR (II) A PERSON ACTING ON
BEHALF OF OR USING THE ASSETS OF ANY SUCH PLAN (INCLUDING AN ENTITY WHOSE
UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF INVESTMENT IN THE ENTITY BY
SUCH PLAN AND THE APPLICATION OF DEPARTMENT OF LABOR REGULATION SS. 2510.3-101),
OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER
CIRCUMSTANCES WHEREBY THE PURCHASE AND HOLDING OF SUBORDINATE CERTIFICATES BY
SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE PROHIBITED TRANSACTION
PROVISIONS OF ERISA AND THE CODE UNDER PROHIBITED TRANSACTION CLASS EXEMPTION
95-60 OR (B) IF SUCH CERTIFICATE IS PRESENTED FOR REGISTRATION IN THE NAME OF A
PERSON DESCRIBED IN CLAUSES (I) OR (II) ABOVE, AN OPINION OF COUNSEL IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR TO THE
EFFECT THAT SUCH ACQUISITION AND HOLDING OF SUCH CERTIFICATE BY SUCH PROPOSED
PURCHASER OR TRANSFEREE WILL NOT RESULT IN THE ASSETS OF THE TRUST FUND BEING
DEEMED TO BE "PLAN ASSETS" AND SUBJECT TO THE FIDUCIARY RESPONSIBILITY
PROVISIONS OF ERISA, THE PROHIBITED TRANSACTION PROVISIONS OF THE CODE OR THE
PROVISIONS OF ANY SIMILAR LAW, WILL NOT CONSTITUTE OR RESULT IN A "PROHIBITED
TRANSACTION" WITHIN THE MEANING OF ERISA, SECTION 4975 OF THE CODE OR ANY
SIMILAR LAW, AND WILL NOT SUBJECT THE TRUSTEE, THE CERTIFICATE REGISTRAR, THE
MASTER SERVICER, THE SPECIAL SERVICER, THE PLACEMENT AGENT OR THE DEPOSITOR TO
ANY OBLIGATION OR LIABILITY (INCLUDING OBLIGATIONS OR LIABILITIES UNDER ERISA,
SECTION 4975 OF THE CODE OR ANY SUCH SIMILAR LAW) IN ADDITION TO THOSE SET FORTH
IN THE AGREEMENT. THE TRANSFEREE OF A BENEFICIAL INTEREST IN A CERTIFICATE THAT
IS A BOOK-ENTRY CERTIFICATE SHALL BE DEEMED TO REPRESENT THAT IT IS NOT A PERSON
DESCRIBED IN CLAUSES (I) OR (II) ABOVE.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR INTEREST"
IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF OF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
principal balance of this Certificate (its "Certificate Principal Balance") as
of the Issue Date by the aggregate principal balance of all the Certificates of
the same Class as this Certificate (their "Class Principal Balance") as of the
Issue Date) in that certain beneficial ownership interest in the Trust Fund
evidenced by all the Certificates of the same Class as this Certificate. The
Trust Fund was created and the Certificates were issued pursuant to a Pooling
and Servicing Agreement, dated as specified above (the "Agreement"), among
NationsLink Funding Corporation, as Depositor, and the Mortgage Loan Seller,
Master Servicer, Special Servicer, Trustee and REMIC Administrator identified
above. To the extent not defined herein, the capitalized terms used herein have
the respective meanings assigned in the Agreement. This Certificate is issued
under and is subject to the terms, provisions and conditions of the Agreement,
to which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the 20th day of each month or, if such 20th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date"), commencing on
the first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed pursuant to the
Agreement on the applicable Distribution Date in respect of the Class of
Certificates to which this Certificate belongs. All distributions made under the
Agreement in respect of this Certificate will be made by the Trustee by wire
transfer in immediately available funds to the account of the Person entitled
thereto at a bank or other entity having appropriate facilities therefor, if
such Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate) will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the offices of the Certificate Registrar appointed as provided in the
Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of
the Certificate Principal Balance hereof is binding on such Holder and all
future Holders of this Certificate and any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without
coupons in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer
or exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
Prior to due presentment of this Certificate for registration of
transfer, the Depositor, the Mortgage Loan Seller, the Master Servicer, the
Special Servicer, the Trustee, the REMIC Administrator, the Certificate
Registrar and any agents of any of them may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of the
Depositor, the Mortgage Loan Seller, the Master Servicer, the Special Servicer,
the Trustee, the REMIC Administrator, the Certificate Registrar or any such
agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of (i) the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer or by any Majority
Certificateholder of the Controlling Class (other than the Depositor or the
Mortgage Loan Seller) at a price determined as provided in the Agreement of all
Mortgage Loans and any REO Properties remaining in the Trust Fund. The Agreement
permits, but does not require, any such Majority Certificateholder or the Master
Servicer to purchase from the Trust Fund all Mortgage Loans and any REO
Properties remaining therein. The exercise of such right will effect early
retirement of the Certificates; however, such right to purchase is subject to
the aggregate Stated Principal Balance of the Mortgage Pool at the time of
purchase being less than 1% of the Initial Pool Balance specified on the face
hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Mortgage Loan Seller, the Master Servicer, the Special Servicer,
the Trustee and the REMIC Administrator thereunder and the rights of the
Certificateholders thereunder, at any time by the Depositor, the Mortgage Loan
Seller, the Master Servicer, the Special Servicer, the Trustee and the REMIC
Administrator with the consent of the Holders of Certificates entitled to at
least 51% of the Voting Rights allocated to the affected Classes. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain circumstances,
including any amendment necessary to maintain the status of REMIC I, REMIC II,
REMIC III, REMIC IIIU, or REMIC IV 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-8
FORM OF CLASS C CERTIFICATE
CLASS C COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 1999-2
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 Second Amended and Restated Pooling
and Servicing Agreement: November 1, 1999 Class Principal Balance of all
the Class C Certificates as of
Cut-off Date: November 10, 1999 the Issue Date: $44,886,135
Issue Date: November 23, 1999 Approximate Aggregate unpaid
principal balance of the
First Distribution Date: Mortgage Pool as of the Cut-off
December 20, 1999 Date, after deducting payments
of principal due on or before
Master Servicer: such date (the "Initial Pool
ORIX Real Estate Capital Markets, LLC Balance"): $1,115,186,748
Trustee and REMIC Administrator:
Special Servicer: Norwest Bank Minnesota, National
ORIX Real Estate Capital Markets, LLC Association
Mortgage Loan Seller:
Bank of America, N.A.
Certificate No. C-__ CUSIP No. [_______________]
<PAGE>
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN NATIONSLINK
FUNDING CORPORATION, BANK OF AMERICA, N.A., NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, ORIX REAL ESTATE CAPITAL MARKETS, LLC OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY
ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (I) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR A GOVERNMENTAL PLAN
(AS DEFINED IN SECTION 3(32) OF ERISA) SUBJECT TO ANY FEDERAL, STATE OR LOCAL
LAW ("SIMILAR LAW") WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING
PROVISIONS OF ERISA OR THE CODE (EACH A "PLAN") OR (II) A PERSON ACTING ON
BEHALF OF OR USING THE ASSETS OF ANY SUCH PLAN (INCLUDING AN ENTITY WHOSE
UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF INVESTMENT IN THE ENTITY BY
SUCH PLAN AND THE APPLICATION OF DEPARTMENT OF LABOR REGULATION SS. 2510.3-101),
OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER
CIRCUMSTANCES WHEREBY THE PURCHASE AND HOLDING OF SUBORDINATE CERTIFICATES BY
SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE PROHIBITED TRANSACTION
PROVISIONS OF ERISA AND THE CODE UNDER PROHIBITED TRANSACTION CLASS EXEMPTION
95-60 OR (B) IF SUCH CERTIFICATE IS PRESENTED FOR REGISTRATION IN THE NAME OF A
PERSON DESCRIBED IN CLAUSES (I) OR (II) ABOVE, AN OPINION OF COUNSEL IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR TO THE
EFFECT THAT SUCH ACQUISITION AND HOLDING OF SUCH CERTIFICATE BY SUCH PROPOSED
PURCHASER OR TRANSFEREE WILL NOT RESULT IN THE ASSETS OF THE TRUST FUND BEING
DEEMED TO BE "PLAN ASSETS" AND SUBJECT TO THE FIDUCIARY RESPONSIBILITY
PROVISIONS OF ERISA, THE PROHIBITED TRANSACTION PROVISIONS OF THE CODE OR THE
PROVISIONS OF ANY SIMILAR LAW, WILL NOT CONSTITUTE OR RESULT IN A "PROHIBITED
TRANSACTION" WITHIN THE MEANING OF ERISA, SECTION 4975 OF THE CODE OR ANY
SIMILAR LAW, AND WILL NOT SUBJECT THE TRUSTEE, THE CERTIFICATE REGISTRAR, THE
MASTER SERVICER, THE SPECIAL SERVICER, THE PLACEMENT AGENT OR THE DEPOSITOR TO
ANY OBLIGATION OR LIABILITY (INCLUDING OBLIGATIONS OR LIABILITIES UNDER ERISA,
SECTION 4975 OF THE CODE OR ANY SUCH SIMILAR LAW) IN ADDITION TO THOSE SET FORTH
IN THE AGREEMENT. THE TRANSFEREE OF A BENEFICIAL INTEREST IN A CERTIFICATE THAT
IS A BOOK-ENTRY CERTIFICATE SHALL BE DEEMED TO REPRESENT THAT IT IS NOT A PERSON
DESCRIBED IN CLAUSES (I) OR (II) ABOVE.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR INTEREST"
IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF OF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
principal balance of this Certificate (its "Certificate Principal Balance") as
of the Issue Date by the aggregate principal balance of all the Certificates of
the same Class as this Certificate (their "Class Principal Balance") as of the
Issue Date) in that certain beneficial ownership interest in the Trust Fund
evidenced by all the Certificates of the same Class as this Certificate. The
Trust Fund was created and the Certificates were issued pursuant to a Pooling
and Servicing Agreement, dated as specified above (the "Agreement"), among
NationsLink Funding Corporation, as Depositor, and the Mortgage Loan Seller,
Master Servicer, Special Servicer, Trustee and REMIC Administrator identified
above. To the extent not defined herein, the capitalized terms used herein have
the respective meanings assigned in the Agreement. This Certificate is issued
under and is subject to the terms, provisions and conditions of the Agreement,
to which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the 20th day of each month or, if such 20th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date"), commencing on
the first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed pursuant to the
Agreement on the applicable Distribution Date in respect of the Class of
Certificates to which this Certificate belongs. All distributions made under the
Agreement in respect of this Certificate will be made by the Trustee by wire
transfer in immediately available funds to the account of the Person entitled
thereto at a bank or other entity having appropriate facilities therefor, if
such Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate) will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the offices of the Certificate Registrar appointed as provided in the
Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of
the Certificate Principal Balance hereof is binding on such Holder and all
future Holders of this Certificate and any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without
coupons in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer
or exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
Prior to due presentment of this Certificate for registration of
transfer, the Depositor, the Mortgage Loan Seller, the Master Servicer, the
Special Servicer, the Trustee, the REMIC Administrator, the Certificate
Registrar and any agents of any of them may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of the
Depositor, the Mortgage Loan Seller, the Master Servicer, the Special Servicer,
the Trustee, the REMIC Administrator, the Certificate Registrar or any such
agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of (i) the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer or by any Majority
Certificateholder of the Controlling Class (other than the Depositor or the
Mortgage Loan Seller) at a price determined as provided in the Agreement of all
Mortgage Loans and any REO Properties remaining in the Trust Fund. The Agreement
permits, but does not require, any such Majority Certificateholder or the Master
Servicer to purchase from the Trust Fund all Mortgage Loans and any REO
Properties remaining therein. The exercise of such right will effect early
retirement of the Certificates; however, such right to purchase is subject to
the aggregate Stated Principal Balance of the Mortgage Pool at the time of
purchase being less than 1% of the Initial Pool Balance specified on the face
hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Mortgage Loan Seller, the Master Servicer, the Special Servicer,
the Trustee and the REMIC Administrator thereunder and the rights of the
Certificateholders thereunder, at any time by the Depositor, the Mortgage Loan
Seller, the Master Servicer, the Special Servicer, the Trustee and the REMIC
Administrator with the consent of the Holders of Certificates entitled to at
least 51% of the Voting Rights allocated to the affected Classes. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain circumstances,
including any amendment necessary to maintain the status of REMIC I, REMIC II,
REMIC III, REMIC IIIU, or REMIC IV 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-9
FORM OF CLASS D CERTIFICATE
CLASS D COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 1999-2
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 Second Amended and Restated Pooling
and Servicing Agreement: November 1, 1999 Class Principal Balance of all
the Class D Certificates as of
Cut-off Date: November 10, 1999 the Issue Date: $67,329,203
Issue Date: November 23, 1999 Approximate Aggregate unpaid
principal balance of the
First Distribution Date: Mortgage Pool as of the Cut-off
December 20, 1999 Date, after deducting payments
of principal due on or before
Master Servicer: such date (the "Initial Pool
ORIX Real Estate Capital Markets, LLC Balance"): $1,115,186,748
Trustee and REMIC Administrator:
Special Servicer: Norwest Bank Minnesota, National
ORIX Real Estate Capital Markets, LLC Association
Mortgage Loan Seller:
Bank of America, N.A.
Certificate No. D -___ CUSIP No. [_______________]
<PAGE>
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN NATIONSLINK
FUNDING CORPORATION, BANK OF AMERICA, N.A., NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, ORIX REAL ESTATE CAPITAL MARKETS, LLC 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.
THIS CERTIFICATE IS ISSUED ON NOVEMBER 23, 1999, AND BASED ON ITS ISSUE PRICE OF
95.53477%, INCLUDING ACCRUED INTEREST, AND A STATED REDEMPTION PRICE AT MATURITY
EQUAL TO ITS INITIAL PRINCIPAL BALANCE (PLUS 3 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 0% CONSTANT
PREPAYMENT RATE FOR THE CONDUIT MORTGAGE LOANS AND 6% CONSTANT PREPAYMENT RATE
FOR THE PORTFOLIO MORTGAGE LOANS USED TO PRICE THIS CERTIFICATE: (I) THE AMOUNT
OF OID AS A PERCENTAGE OF THE INITIAL PRINCIPAL BALANCE OF THIS CERTIFICATE IS
APPROXIMATELY 4.52908571%; (II) THE ANNUAL YIELD TO MATURITY OF THIS
CERTIFICATE, COMPOUNDED MONTHLY, IS APPROXIMATELY 8.26%; AND (III) THE AMOUNT OF
OID ALLOCABLE TO THE SHORT FIRST ACCRUAL PERIOD (NOVEMBER 23, 1999 TO DECEMBER
20, 1999) AS A PERCENTAGE OF THE INITIAL PRINCIPAL BALANCE OF THIS CERTIFICATE,
CALCULATED USING THE EXACT METHOD, IS APPROXIMATELY 0.01721002.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (I) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR A GOVERNMENTAL PLAN
(AS DEFINED IN SECTION 3(32) OF ERISA) SUBJECT TO ANY FEDERAL, STATE OR LOCAL
LAW ("SIMILAR LAW") WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING
PROVISIONS OF ERISA OR THE CODE (EACH A "PLAN") OR (II) A PERSON ACTING ON
BEHALF OF OR USING THE ASSETS OF ANY SUCH PLAN (INCLUDING AN ENTITY WHOSE
UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF INVESTMENT IN THE ENTITY BY
SUCH PLAN AND THE APPLICATION OF DEPARTMENT OF LABOR REGULATION SS. 2510.3-101),
OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER
CIRCUMSTANCES WHEREBY THE PURCHASE AND HOLDING OF SUBORDINATE CERTIFICATES BY
SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE PROHIBITED TRANSACTION
PROVISIONS OF ERISA AND THE CODE UNDER PROHIBITED TRANSACTION CLASS EXEMPTION
95-60 OR (B) IF SUCH CERTIFICATE IS PRESENTED FOR REGISTRATION IN THE NAME OF A
PERSON DESCRIBED IN CLAUSES (I) OR (II) ABOVE, AN OPINION OF COUNSEL IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR TO THE
EFFECT THAT SUCH ACQUISITION AND HOLDING OF SUCH CERTIFICATE BY SUCH PROPOSED
PURCHASER OR TRANSFEREE WILL NOT RESULT IN THE ASSETS OF THE TRUST FUND BEING
DEEMED TO BE "PLAN ASSETS" AND SUBJECT TO THE FIDUCIARY RESPONSIBILITY
PROVISIONS OF ERISA, THE PROHIBITED TRANSACTION PROVISIONS OF THE CODE OR THE
PROVISIONS OF ANY SIMILAR LAW, WILL NOT CONSTITUTE OR RESULT IN A "PROHIBITED
TRANSACTION" WITHIN THE MEANING OF ERISA, SECTION 4975 OF THE CODE OR ANY
SIMILAR LAW, AND WILL NOT SUBJECT THE TRUSTEE, THE CERTIFICATE REGISTRAR, THE
MASTER SERVICER, THE SPECIAL SERVICER, THE PLACEMENT AGENT OR THE DEPOSITOR TO
ANY OBLIGATION OR LIABILITY (INCLUDING OBLIGATIONS OR LIABILITIES UNDER ERISA,
SECTION 4975 OF THE CODE OR ANY SUCH SIMILAR LAW) IN ADDITION TO THOSE SET FORTH
IN THE AGREEMENT. THE TRANSFEREE OF A BENEFICIAL INTEREST IN A CERTIFICATE THAT
IS A BOOK-ENTRY CERTIFICATE SHALL BE DEEMED TO REPRESENT THAT IT IS NOT A PERSON
DESCRIBED IN CLAUSES (I) OR (II) ABOVE.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR INTEREST"
IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF OF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
principal balance of this Certificate (its "Certificate Principal Balance") as
of the Issue Date by the aggregate principal balance of all the Certificates of
the same Class as this Certificate (their "Class Principal Balance") as of the
Issue Date) in that certain beneficial ownership interest in the Trust Fund
evidenced by all the Certificates of the same Class as this Certificate. The
Trust Fund was created and the Certificates were issued pursuant to a Pooling
and Servicing Agreement, dated as specified above (the "Agreement"), among
NationsLink Funding Corporation, as Depositor, and the Mortgage Loan Seller,
Master Servicer, Special Servicer, Trustee and REMIC Administrator identified
above. To the extent not defined herein, the capitalized terms used herein have
the respective meanings assigned in the Agreement. This Certificate is issued
under and is subject to the terms, provisions and conditions of the Agreement,
to which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the 20th day of each month or, if such 20th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date"), commencing on
the first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed pursuant to the
Agreement on the applicable Distribution Date in respect of the Class of
Certificates to which this Certificate belongs. All distributions made under the
Agreement in respect of this Certificate will be made by the Trustee by wire
transfer in immediately available funds to the account of the Person entitled
thereto at a bank or other entity having appropriate facilities therefor, if
such Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate) will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the offices of the Certificate Registrar appointed as provided in the
Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of
the Certificate Principal Balance hereof is binding on such Holder and all
future Holders of this Certificate and any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without
coupons in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer
or exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
For so long as this Certificate is registered in the name of Cede &
Co., or in such other name as is requested by an authorized representative of
DTC, transfers of interests in this Certificate shall be made through the
book-entry facilities of DTC.
Prior to due presentment of this Certificate for registration of
transfer, the Depositor, the Mortgage Loan Seller, the Master Servicer, the
Special Servicer, the Trustee, the REMIC Administrator, the Certificate
Registrar and any agents of any of them may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of the
Depositor, the Mortgage Loan Seller, the Master Servicer, the Special Servicer,
the Trustee, the REMIC Administrator, the Certificate Registrar or any such
agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of (i) the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer or by any Majority
Certificateholder of the Controlling Class (other than the Depositor or the
Mortgage Loan Seller) at a price determined as provided in the Agreement of all
Mortgage Loans and any REO Properties remaining in the Trust Fund. The Agreement
permits, but does not require, any such Majority Certificateholder or the Master
Servicer to purchase from the Trust Fund all Mortgage Loans and any REO
Properties remaining therein. The exercise of such right will effect early
retirement of the Certificates; however, such right to purchase is subject to
the aggregate Stated Principal Balance of the Mortgage Pool at the time of
purchase being less than 1% of the Initial Pool Balance specified on the face
hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Mortgage Loan Seller, the Master Servicer, the Special Servicer,
the Trustee and the REMIC Administrator thereunder and the rights of the
Certificateholders thereunder, at any time by the Depositor, the Mortgage Loan
Seller, the Master Servicer, the Special Servicer, the Trustee and the REMIC
Administrator with the consent of the Holders of Certificates entitled to at
least 51% of the Voting Rights allocated to the affected Classes. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain circumstances,
including any amendment necessary to maintain the status of REMIC I, REMIC II,
REMIC III, REMIC IIIU, or REMIC IV 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-10
FORM OF CLASS E CERTIFICATE
CLASS E COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 1999-2
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 Pooling and Servicing Agreement:
August 1, 1999 Class Principal Balance of all
the Class E Certificates as of
Cut-off Date: August 1, 1999 the Issue Date: $16,832,300
Issue Date: August 17, 1999 Approximate Aggregate unpaid
principal balance of the
First Distribution Date: Mortgage Pool as of the Cut-off
September 20, 1999 Date, after deducting payments
of principal due on or before
Master Servicer: such date (the "Initial Pool
ORIX Real Estate Capital Markets, LLC Balance"): $1,122,153,392
Trustee and REMIC Administrator:
Special Servicer: Norwest Bank Minnesota, National
ORIX Real Estate Capital Markets, LLC Association
Mortgage Loan Seller:
Bank of America, N.A.
Certificate No. E-_____ CUSIP No. [_______________]
<PAGE>
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN NATIONSLINK
FUNDING CORPORATION, BANK OF AMERICA, N.A., NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, ORIX REAL ESTATE CAPITAL MARKETS, LLC 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.
THIS CERTIFICATE IS ISSUED ON AUGUST 17, 1999, AND BASED ON ITS ISSUE PRICE OF
80.34698%, 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 19.65302%;
AND (II) THE ANNUAL YIELD TO MATURITY OF THIS CERTIFICATE, COMPOUNDED MONTHLY,
IS APPROXIMATELY 19.46%. 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.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE AGREEMENT REFERRED TO HEREIN.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF RULE 501 (A)(1), (2), (3) OR (7) OF REGULATION D
UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM THE REGISTRATION
REQUIREMENTS UNDER THE SECURITIES ACT, OR (D) PURSUANT TO ANOTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT IN
EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY THE TRANSFEROR TO
THE TRUSTEE OF A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE LAST PAGE
OF THIS CERTIFICATE.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR INTEREST"
IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
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 (the "Agreement"), among
NationsLink Funding Corporation, as Depositor, and the Mortgage Loan Seller,
Master Servicer, Special Servicer, Trustee and REMIC Administrator identified
above. To the extent not defined herein, the capitalized terms used herein have
the respective meanings assigned in the Agreement. This Certificate is issued
under and is subject to the terms, provisions and conditions of the Agreement,
to which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the 20th day of each month or, if such 20th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date"), commencing on
the first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed pursuant to the
Agreement on the applicable Distribution Date in respect of the Class of
Certificates to which this Certificate belongs. All distributions made under the
Agreement in respect of this Certificate will be made by the Trustee by wire
transfer in immediately available funds to the account of the Person entitled
thereto at a bank or other entity having appropriate facilities therefor, if
such Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate) will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the offices of the Certificate Registrar appointed as provided in the
Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of
the Certificate Principal Balance hereof is binding on such Holder and all
future Holders of this Certificate and any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without
coupons in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer
or exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
For so long as this Certificate is registered in the name of Cede &
Co., or in such other name as is requested by an authorized representative of
DTC, transfers of interests in this Certificate shall be made through the
book-entry facilities of DTC.
Prior to due presentment of this Certificate for registration of
transfer, the Depositor, the Mortgage Loan Seller, the Master Servicer, the
Special Servicer, the Trustee, the REMIC Administrator, the Certificate
Registrar and any agents of any of them may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of the
Depositor, the Mortgage Loan Seller, the Master Servicer, the Special Servicer,
the Trustee, the REMIC Administrator, the Certificate Registrar or any such
agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of (i) the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer or by any Majority
Certificateholder of the Controlling Class (other than the Depositor or the
Mortgage Loan Seller) at a price determined as provided in the Agreement of all
Mortgage Loans and any REO Properties remaining in the Trust Fund. The Agreement
permits, but does not require, any such Majority Certificateholder or the Master
Servicer to purchase from the Trust Fund all Mortgage Loans and any REO
Properties remaining therein. The exercise of such right will effect early
retirement of the Certificates; however, such right to purchase is subject to
the aggregate Stated Principal Balance of the Mortgage Pool at the time of
purchase being less than 1% of the Initial Pool Balance specified on the face
hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Mortgage Loan Seller, the Master Servicer, the Special Servicer,
the Trustee and the REMIC Administrator thereunder and the rights of the
Certificateholders thereunder, at any time by the Depositor, the Mortgage Loan
Seller, the Master Servicer, the Special Servicer, the Trustee and the REMIC
Administrator with the consent of the Holders of Certificates entitled to at
least 51% of the Voting Rights allocated to the affected Classes. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain circumstances,
including any amendment necessary to maintain the status of REMIC I or REMIC II
as a REMIC, without the consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York that are applicable to agreements negotiated, made
and to be performed in said State, and the obligations, rights and remedies of
the Holder hereof shall be determined in accordance with such laws.
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
Norwest Bank Minnesota, National
Association,
as Trustee
By:_______________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class E Certificates referred to in the
within-mentioned Agreement.
Dated:
Norwest Bank Minnesota, National
Association,
as Certificate Registrar
By:_______________________________________
Authorized Officer
<PAGE>
SCHEDULE A
CERTIFICATE BALANCE OF
DEFINITIVE CERTIFICATES
EXCHANGED OR TRANSFERRED
FOR, OR ISSUED IN EXCHANGE
FOR OR UPON TRANSFER OF, AN REMAINING PRINCIPAL
INTEREST IN THIS BOOK- AMOUNT OF BOOK-ENTRY NOTATION
DATE ENTRY CERTIFICATE 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 F CERTIFICATE
CLASS F COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 1999-2
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 Pooling and Servicing Class Principal Balance of all
Agreement: August 1, 1999 the Class F Certificates as of
the Issue Date: $56,107,669
Cut-off Date: August 1, 1999
Issue Date: August 17, 1999 Approximate Aggregate unpaid
principal balance of the
First Distribution Date: Mortgage Pool as of the Cut-off
September 20, 1999 Date, after deducting payments
of principal due on or before
Master Servicer: such date (the "Initial Pool
ORIX Real Estate Capital Markets, LLC Balance"): $1,122,153,392
Trustee and REMIC Administrator:
Special Servicer: Norwest Bank Minnesota, National
ORIX Real Estate Capital Markets, LLC Association
Mortgage Loan Seller:
Bank of America, N.A.
Certificate No. F-__ CUSIP No. [_______________]
<PAGE>
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN NATIONSLINK
FUNDING CORPORATION, BANK OF AMERICA, N.A., NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, ORIX REAL ESTATE CAPITAL MARKETS, LLC 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 AUGUST 17, 1999, AND BASED ON ITS ISSUE PRICE OF
63.81326%, 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 36.18674%;
AND (II) THE ANNUAL YIELD TO MATURITY OF THIS CERTIFICATE, COMPOUNDED MONTHLY,
IS APPROXIMATELY 11.41%. 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 (the "Agreement"), among
NationsLink Funding Corporation, as Depositor, and the Mortgage Loan Seller,
Master Servicer, Special Servicer, Trustee and REMIC Administrator identified
above. To the extent not defined herein, the capitalized terms used herein have
the respective meanings assigned in the Agreement. This Certificate is issued
under and is subject to the terms, provisions and conditions of the Agreement,
to which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the 20th day of each month or, if such 20th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date"), commencing on
the first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed pursuant to the
Agreement on the applicable Distribution Date in respect of the Class of
Certificates to which this Certificate belongs. All distributions made under the
Agreement in respect of this Certificate will be made by the Trustee by wire
transfer in immediately available funds to the account of the Person entitled
thereto at a bank or other entity having appropriate facilities therefor, if
such Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate) will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the offices of the Certificate Registrar appointed as provided in the
Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of
the Certificate Principal Balance hereof is binding on such Holder and all
future Holders of this Certificate and any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without
coupons in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer
or exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
For so long as this Certificate is registered in the name of Cede &
Co., or in such other name as is requested by an authorized representative of
DTC, transfers of interests in this Certificate shall be made through the
book-entry facilities of DTC.
Prior to due presentment of this Certificate for registration of
transfer, the Depositor, the Mortgage Loan Seller, the Master Servicer, the
Special Servicer, the Trustee, the REMIC Administrator, the Certificate
Registrar and any agents of any of them may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of the
Depositor, the Mortgage Loan Seller, the Master Servicer, the Special Servicer,
the Trustee, the REMIC Administrator, the Certificate Registrar or any such
agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of (i) the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer or by any Majority
Certificateholder of the Controlling Class (other than the Depositor or the
Mortgage Loan Seller) at a price determined as provided in the Agreement of all
Mortgage Loans and any REO Properties remaining in the Trust Fund. The Agreement
permits, but does not require, any such Majority Certificateholder or the Master
Servicer to purchase from the Trust Fund all Mortgage Loans and any REO
Properties remaining therein. The exercise of such right will effect early
retirement of the Certificates; however, such right to purchase is subject to
the aggregate Stated Principal Balance of the Mortgage Pool at the time of
purchase being less than 1% of the Initial Pool Balance specified on the face
hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Mortgage Loan Seller, the Master Servicer, the Special Servicer,
the Trustee and the REMIC Administrator thereunder and the rights of the
Certificateholders thereunder, at any time by the Depositor, the Mortgage Loan
Seller, the Master Servicer, the Special Servicer, the Trustee and the REMIC
Administrator with the consent of the Holders of Certificates entitled to at
least 51% of the Voting Rights allocated to the affected Classes. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain circumstances,
including any amendment necessary to maintain the status of REMIC I or REMIC II
as a REMIC, without the consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York that are applicable to agreements negotiated, made
and to be performed in said State, and the obligations, rights and remedies of
the Holder hereof shall be determined in accordance with such laws.
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
Norwest Bank Minnesota, National
Association,
as Trustee
By:_______________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class 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-12
FORM OF CLASS G CERTIFICATE
CLASS G COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 1999-2
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 Pooling and Servicing
Agreement: August 1, 1999 Class Principal Balance of all
the Class G Certificates as of
Cut-off Date: August 1, 1999 the Issue Date: $8,416,150
Issue Date: August 17, 1999 Approximate Aggregate unpaid
principal balance of the
First Distribution Date: Mortgage Pool as of the Cut-off
September 20, 1999 Date, after deducting payments
of principal due on or before
Master Servicer: such date (the "Initial Pool
ORIX Real Estate Capital Markets, LLC Balance"): $1,122,153,392
Trustee and REMIC Administrator:
Special Servicer: Norwest Bank Minnesota, National
ORIX Real Estate Capital Markets, LLC Association
Mortgage Loan Seller:
Bank of America, N.A.
Certificate No. G-__ CUSIP No. [_______________]
<PAGE>
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN NATIONSLINK
FUNDING CORPORATION, BANK OF AMERICA, N.A., NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, ORIX REAL ESTATE CAPITAL MARKETS, LLC 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 AUGUST 17, 1999, AND BASED ON ITS ISSUE PRICE OF
58.36167%, 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 41.63832%;
AND (II) THE ANNUAL YIELD TO MATURITY OF THIS CERTIFICATE, COMPOUNDED MONTHLY,
IS APPROXIMATELY 12.11%. 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 (the "Agreement"), among
NationsLink Funding Corporation, as Depositor, and the Mortgage Loan Seller,
Master Servicer, Special Servicer, Trustee and REMIC Administrator identified
above. To the extent not defined herein, the capitalized terms used herein have
the respective meanings assigned in the Agreement. This Certificate is issued
under and is subject to the terms, provisions and conditions of the Agreement,
to which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the 20th day of each month or, if such 20th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date"), commencing on
the first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed pursuant to the
Agreement on the applicable Distribution Date in respect of the Class of
Certificates to which this Certificate belongs. All distributions made under the
Agreement in respect of this Certificate will be made by the Trustee by wire
transfer in immediately available funds to the account of the Person entitled
thereto at a bank or other entity having appropriate facilities therefor, if
such Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate) will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the offices of the Certificate Registrar appointed as provided in the
Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of
the Certificate Principal Balance hereof is binding on such Holder and all
future Holders of this Certificate and any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without
coupons in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer
or exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
For so long as this Certificate is registered in the name of Cede &
Co., or in such other name as is requested by an authorized representative of
DTC, transfers of interests in this Certificate shall be made through the
book-entry facilities of DTC.
Prior to due presentment of this Certificate for registration of
transfer, the Depositor, the Mortgage Loan Seller, the Master Servicer, the
Special Servicer, the Trustee, the REMIC Administrator, the Certificate
Registrar and any agents of any of them may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of the
Depositor, the Mortgage Loan Seller, the Master Servicer, the Special Servicer,
the Trustee, the REMIC Administrator, the Certificate Registrar or any such
agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of (i) the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer or by any Majority
Certificateholder of the Controlling Class (other than the Depositor or the
Mortgage Loan Seller) at a price determined as provided in the Agreement of all
Mortgage Loans and any REO Properties remaining in the Trust Fund. The Agreement
permits, but does not require, any such Majority Certificateholder or the Master
Servicer to purchase from the Trust Fund all Mortgage Loans and any REO
Properties remaining therein. The exercise of such right will effect early
retirement of the Certificates; however, such right to purchase is subject to
the aggregate Stated Principal Balance of the Mortgage Pool at the time of
purchase being less than 1% of the Initial Pool Balance specified on the face
hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Mortgage Loan Seller, the Master Servicer, the Special Servicer,
the Trustee and the REMIC Administrator thereunder and the rights of the
Certificateholders thereunder, at any time by the Depositor, the Mortgage Loan
Seller, the Master Servicer, the Special Servicer, the Trustee and the REMIC
Administrator with the consent of the Holders of Certificates entitled to at
least 51% of the Voting Rights allocated to the affected Classes. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain circumstances,
including any amendment necessary to maintain the status of REMIC I or REMIC II
as a REMIC, without the consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York that are applicable to agreements negotiated, made
and to be performed in said State, and the obligations, rights and remedies of
the Holder hereof shall be determined in accordance with such laws.
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
Norwest Bank Minnesota, National
Association,
as Trustee
By:_______________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class 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, AN REMAINING PRINCIPAL
INTEREST IN THIS BOOK- AMOUNT OF BOOK-ENTRY NOTATION
DATE ENTRY CERTIFICATE 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-13
FORM OF CLASS H CERTIFICATE
CLASS H COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 1999-2
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 Pooling and Servicing
Agreement: August 1, 1999 Class Principal Balance of all
the Class H Certificates as of
Cut-off Date: August 1, 1999 the Issue Date: $22,443,067
Issue Date: August 17, 1999 Approximate Aggregate unpaid
principal balance of the
First Distribution Date: Mortgage Pool as of the Cut-off
September 20, 1999 Date, after deducting payments
of principal due on or before
Master Servicer: such date (the "Initial Pool
ORIX Real Estate Capital Markets, LLC Balance"): $1,122,153,392
Trustee and REMIC Administrator:
Special Servicer: Norwest Bank Minnesota, National
ORIX Real Estate Capital Markets, LLC Association
Mortgage Loan Seller:
Bank of America, N.A.
Certificate No. H-___ CUSIP No. [_______________]
<PAGE>
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN NATIONSLINK
FUNDING CORPORATION, BANK OF AMERICA, N.A., NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, ORIX REAL ESTATE CAPITAL MARKETS LLC, 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 AUGUST 17, 1999, AND BASED ON ITS ISSUE PRICE OF
57.34713%, 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 42.65287%;
AND (II) THE ANNUAL YIELD TO MATURITY OF THIS CERTIFICATE, COMPOUNDED MONTHLY,
IS APPROXIMATELY 13.30%. 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 (the "Agreement"), among
NationsLink Funding Corporation, as Depositor, and the Mortgage Loan Seller,
Master Servicer, Special Servicer, Trustee and REMIC Administrator identified
above. To the extent not defined herein, the capitalized terms used herein have
the respective meanings assigned in the Agreement. This Certificate is issued
under and is subject to the terms, provisions and conditions of the Agreement,
to which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the 20th day of each month or, if such 20th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date"), commencing on
the first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed pursuant to the
Agreement on the applicable Distribution Date in respect of the Class of
Certificates to which this Certificate belongs. All distributions made under the
Agreement in respect of this Certificate will be made by the Trustee by wire
transfer in immediately available funds to the account of the Person entitled
thereto at a bank or other entity having appropriate facilities therefor, if
such Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate) will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the offices of the Certificate Registrar appointed as provided in the
Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of
the Certificate Principal Balance hereof is binding on such Holder and all
future Holders of this Certificate and any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without
coupons in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer
or exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
For so long as this Certificate is registered in the name of Cede &
Co., or in such other name as is requested by an authorized representative of
DTC, transfers of interests in this Certificate shall be made through the
book-entry facilities of DTC.
Prior to due presentment of this Certificate for registration of
transfer, the Depositor, the Mortgage Loan Seller, the Master Servicer, the
Special Servicer, the Trustee, the REMIC Administrator, the Certificate
Registrar and any agents of any of them may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of the
Depositor, the Mortgage Loan Seller, the Master Servicer, the Special Servicer,
the Trustee, the REMIC Administrator, the Certificate Registrar or any such
agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of (i) the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer or by any Majority
Certificateholder of the Controlling Class (other than the Depositor or the
Mortgage Loan Seller) at a price determined as provided in the Agreement of all
Mortgage Loans and any REO Properties remaining in the Trust Fund. The Agreement
permits, but does not require, any such Majority Certificateholder or the Master
Servicer to purchase from the Trust Fund all Mortgage Loans and any REO
Properties remaining therein. The exercise of such right will effect early
retirement of the Certificates; however, such right to purchase is subject to
the aggregate Stated Principal Balance of the Mortgage Pool at the time of
purchase being less than 1% of the Initial Pool Balance specified on the face
hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Mortgage Loan Seller, the Master Servicer, the Special Servicer,
the Trustee and the REMIC Administrator thereunder and the rights of the
Certificateholders thereunder, at any time by the Depositor, the Mortgage Loan
Seller, the Master Servicer, the Special Servicer, the Trustee and the REMIC
Administrator with the consent of the Holders of Certificates entitled to at
least 51% of the Voting Rights allocated to the affected Classes. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain circumstances,
including any amendment necessary to maintain the status of REMIC I or REMIC II
as a REMIC, without the consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York that are applicable to agreements negotiated, made
and to be performed in said State, and the obligations, rights and remedies of
the Holder hereof shall be determined in accordance with such laws.
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
Norwest Bank Minnesota, National
Association,
as Trustee
By:_______________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class 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, AN REMAINING PRINCIPAL
INTEREST IN THIS BOOK- AMOUNT OF BOOK-ENTRY NOTATION
DATE ENTRY CERTIFICATE 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
___________________________ for the account of _____________________________.
This information is provided by _________________, the assignee
named above, or __________________________, as its agent.
<PAGE>
EXHIBIT A-14
FORM OF CLASS J CERTIFICATE
CLASS J COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 1999-2
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 Pooling and Servicing
Agreement: August 1, 1999 Class Principal Balance of all
the Class J Certificates as of
Cut-off Date: August 1, 1999 the Issue Date:
$2,805,383
Issue Date: August 17, 1999 Approximate Aggregate unpaid
principal balance of the
First Distribution Date: Mortgage Pool as of the Cut-off
September 20, 1999 Date, after deducting payments
of principal due on or before
Master Servicer: such date (the "Initial Pool
ORIX Real Estate Capital Markets, LLC Balance"): $1,122,153,392
Trustee and REMIC Administrator:
Special Servicer: Norwest Bank Minnesota, National
ORIX Real Estate Capital Markets, LLC Association
Mortgage Loan Seller:
Bank of America, N.A.
Certificate No. J-__ CUSIP No. [_______________]
<PAGE>
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN NATIONSLINK
FUNDING CORPORATION, BANK OF AMERICA, N.A., NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, ORIX REAL ESTATE CAPITAL MARKETS, LLC 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 AUGUST 17, 1999, AND BASED ON ITS ISSUE PRICE OF
50.96071%, 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 49.03928%;
AND (II) THE ANNUAL YIELD TO MATURITY OF THIS CERTIFICATE, COMPOUNDED MONTHLY,
IS APPROXIMATELY 14.95%. 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 (the "Agreement"), among
NationsLink Funding Corporation, as Depositor, and the Mortgage Loan Seller,
Master Servicer, Special Servicer, Trustee and REMIC Administrator identified
above. To the extent not defined herein, the capitalized terms used herein have
the respective meanings assigned in the Agreement. This Certificate is issued
under and is subject to the terms, provisions and conditions of the Agreement,
to which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the 20th day of each month or, if such 20th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date"), commencing on
the first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed pursuant to the
Agreement on the applicable Distribution Date in respect of the Class of
Certificates to which this Certificate belongs. All distributions made under the
Agreement in respect of this Certificate will be made by the Trustee by wire
transfer in immediately available funds to the account of the Person entitled
thereto at a bank or other entity having appropriate facilities therefor, if
such Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate) will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the offices of the Certificate Registrar appointed as provided in the
Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of
the Certificate Principal Balance hereof is binding on such Holder and all
future Holders of this Certificate and any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without
coupons in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer
or exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
For so long as this Certificate is registered in the name of Cede &
Co., or in such other name as is requested by an authorized representative of
DTC, transfers of interests in this Certificate shall be made through the
book-entry facilities of DTC.
Prior to due presentment of this Certificate for registration of
transfer, the Depositor, the Mortgage Loan Seller, the Master Servicer, the
Special Servicer, the Trustee, the REMIC Administrator, the Certificate
Registrar and any agents of any of them may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of the
Depositor, the Mortgage Loan Seller, the Master Servicer, the Special Servicer,
the Trustee, the REMIC Administrator, the Certificate Registrar or any such
agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of (i) the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer or by any Majority
Certificateholder of the Controlling Class (other than the Depositor or the
Mortgage Loan Seller) at a price determined as provided in the Agreement of all
Mortgage Loans and any REO Properties remaining in the Trust Fund. The Agreement
permits, but does not require, any such Majority Certificateholder or the Master
Servicer to purchase from the Trust Fund all Mortgage Loans and any REO
Properties remaining therein. The exercise of such right will effect early
retirement of the Certificates; however, such right to purchase is subject to
the aggregate Stated Principal Balance of the Mortgage Pool at the time of
purchase being less than 1% of the Initial Pool Balance specified on the face
hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Mortgage Loan Seller, the Master Servicer, the Special Servicer,
the Trustee and the REMIC Administrator thereunder and the rights of the
Certificateholders thereunder, at any time by the Depositor, the Mortgage Loan
Seller, the Master Servicer, the Special Servicer, the Trustee and the REMIC
Administrator with the consent of the Holders of Certificates entitled to at
least 51% of the Voting Rights allocated to the affected Classes. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain circumstances,
including any amendment necessary to maintain the status of REMIC I or REMIC II
as a REMIC, without the consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York that are applicable to agreements negotiated, made
and to be performed in said State, and the obligations, rights and remedies of
the Holder hereof shall be determined in accordance with such laws.
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
Norwest Bank Minnesota, National
Association,
as Trustee
By:_______________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class 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, AN REMAINING PRINCIPAL
INTEREST IN THIS BOOK- AMOUNT OF BOOK-ENTRY NOTATION
DATE ENTRY CERTIFICATE 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-15
FORM OF CLASS K CERTIFICATE
CLASS K COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 1999-2
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 Pooling and Servicing
Agreement: August 1, 1999 Class Principal Balance of all
the Class K Certificates as of
Cut-off Date: August 1, 1999 the Issue Date: $28,053,840
Issue Date: August 17, 1999 Approximate Aggregate unpaid
principal balance of the
First Distribution Date: Mortgage Pool as of the Cut-off
September 20, 1999 Date, after deducting payments
of principal due on or before
Master Servicer: such date (the "Initial Pool
ORIX Real Estate Capital Markets, LLC Balance"): $1,122,153,392
Trustee and REMIC Administrator:
Special Servicer: Norwest Bank Minnesota, National
ORIX Real Estate Capital Markets, LLC Association
Mortgage Loan Seller:
Bank of America, N.A.
Certificate No. K-__ CUSIP No. [_______________]
<PAGE>
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN NATIONSLINK
FUNDING CORPORATION, BANK OF AMERICA, N.A., NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, ORIX REAL ESTATE CAPITAL MARKETS, LLC 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 AUGUST 17, 1999, AND BASED ON ITS ISSUE PRICE OF
28.46633%, 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 71.53367%;
AND (II) THE ANNUAL YIELD TO MATURITY OF THIS CERTIFICATE, COMPOUNDED MONTHLY,
IS APPROXIMATELY 23.79%. 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 (the "Agreement"), among
NationsLink Funding Corporation, as Depositor, and the Mortgage Loan Seller,
Master Servicer, Special Servicer, Trustee and REMIC Administrator identified
above. To the extent not defined herein, the capitalized terms used herein have
the respective meanings assigned in the Agreement. This Certificate is issued
under and is subject to the terms, provisions and conditions of the Agreement,
to which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the 20th day of each month or, if such 20th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date"), commencing on
the first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed pursuant to the
Agreement on the applicable Distribution Date in respect of the Class of
Certificates to which this Certificate belongs. All distributions made under the
Agreement in respect of this Certificate will be made by the Trustee by wire
transfer in immediately available funds to the account of the Person entitled
thereto at a bank or other entity having appropriate facilities therefor, if
such Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate) will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the offices of the Certificate Registrar appointed as provided in the
Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of
the Certificate Principal Balance hereof is binding on such Holder and all
future Holders of this Certificate and any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without
coupons in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer
or exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
For so long as this Certificate is registered in the name of Cede &
Co., or in such other name as is requested by an authorized representative of
DTC, transfers of interests in this Certificate shall be made through the
book-entry facilities of DTC.
Prior to due presentment of this Certificate for registration of
transfer, the Depositor, the Mortgage Loan Seller, the Master Servicer, the
Special Servicer, the Trustee, the REMIC Administrator, the Certificate
Registrar and any agents of any of them may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of the
Depositor, the Mortgage Loan Seller, the Master Servicer, the Special Servicer,
the Trustee, the REMIC Administrator, the Certificate Registrar or any such
agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of (i) the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer or by any Majority
Certificateholder of the Controlling Class (other than the Depositor or the
Mortgage Loan Seller) at a price determined as provided in the Agreement of all
Mortgage Loans and any REO Properties remaining in the Trust Fund. The Agreement
permits, but does not require, any such Majority Certificateholder or the Master
Servicer to purchase from the Trust Fund all Mortgage Loans and any REO
Properties remaining therein. The exercise of such right will effect early
retirement of the Certificates; however, such right to purchase is subject to
the aggregate Stated Principal Balance of the Mortgage Pool at the time of
purchase being less than 1% of the Initial Pool Balance specified on the face
hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Mortgage Loan Seller, the Master Servicer, the Special Servicer,
the Trustee and the REMIC Administrator thereunder and the rights of the
Certificateholders thereunder, at any time by the Depositor, the Mortgage Loan
Seller, the Master Servicer, the Special Servicer, the Trustee and the REMIC
Administrator with the consent of the Holders of Certificates entitled to at
least 51% of the Voting Rights allocated to the affected Classes. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain circumstances,
including any amendment necessary to maintain the status of REMIC I or REMIC II
as a REMIC, without the consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York that are applicable to agreements negotiated, made
and to be performed in said State, and the obligations, rights and remedies of
the Holder hereof shall be determined in accordance with such laws.
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
Norwest Bank Minnesota, National
Association,
as Trustee
By:_______________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class 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, AN REMAINING PRINCIPAL
INTEREST IN THIS BOOK- AMOUNT OF BOOK-ENTRY NOTATION
DATE ENTRY CERTIFICATE 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-16
FORM OF CLASS R-I CERTIFICATE
CLASS R-I COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 1999-2
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: August 1, 1999
Percentage Interest evidenced by
Cut-off Date: August 1, 1999 this Certificate in the related
Class: ____%
Issue Date: August 17, 1999
Approximate Aggregate unpaid
First Distribution Date: principal balance of the
September 20, 1999 Mortgage Pool as of the Cut-off
Date, after deducting payments
Master Servicer: of principal due on or before
ORIX Real Estate Capital Markets, LLC such date (the "Initial Pool
Balance"): $1,122,153,392
Special Servicer: Trustee and REMIC Administrator:
ORIX Real Estate Capital Markets, LLC Norwest Bank Minnesota, National
Association
Mortgage Loan Seller:
Bank of America, N.A.
<PAGE>
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN NATIONSLINK
FUNDING CORPORATION, BANK OF AMERICA, N.A., NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, ORIX REAL ESTATE CAPITAL MARKETS, LLC 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.
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, Master Servicer,
Special Servicer, Trustee and REMIC Administrator identified above. To the
extent not defined herein, the capitalized terms used herein have the respective
meanings assigned in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the 20th day of each month or, if such 20th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date"), commencing
upon the first Distribution Date specified above, to the Person in whose name
this Certificate is registered at the close of business on the last Business Day
of the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed pursuant to the
Agreement on the applicable Distribution Date in respect of the Class of
Certificates to which this Certificate belongs. All distributions made under the
Agreement in respect of this Certificate will be made by the Trustee by wire
transfer in immediately available funds to the account of the Person entitled
thereto at a bank or other entity having appropriate facilities therefor, if
such Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of the Person entitled thereto, as such name and address
appear in the Certificate Register. Notwithstanding the above, the final
distribution in respect of this Certificate will be made after due notice by the
Trustee of the pendency of such distribution and only upon presentation and
surrender of this Certificate at the offices of the Certificate Registrar
appointed as provided in the Agreement or such other location as may be
specified in such notice.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, Distribution Account and,
if established, the REO Account may be made from time to time for purposes other
than, and, in certain cases, prior to, distributions to Certificateholders, such
purposes including the reimbursement of advances made, or certain expenses
incurred, with respect to the Mortgage Loans and the payment of interest on such
advances and expenses.
The Certificates are issuable in fully registered form only without
coupons in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
Each Person who has or who acquires any Ownership Interest in this
Certificate shall be deemed by the acceptance or acquisition of such Ownership
Interest to have agreed to be bound by the provisions of Section 5.02(d) of the
Agreement and, if any purported Transferee shall become a Holder of this
Certificate in violation of the provisions of such Section 5.02(d), to have
irrevocably authorized the Trustee under clause (ii)(A) of such Section 5.02(d)
to deliver payments to a Person other than such Person and to have irrevocably
authorized the Trustee under clause (ii)(B) of such Section 5.02(d) to negotiate
the terms of any mandatory disposition and to execute all instruments of
transfer and to do all other things necessary in connection with any such
disposition. Each Person holding or acquiring any Ownership Interest in this
Certificate must be a Permitted Transferee and shall promptly notify the Master
Servicer, the Trustee and the REMIC Administrator of any change or impending
change in its status as a Permitted Transferee. In connection with any proposed
transfer of any Ownership Interest in this Certificate, the Certificate
Registrar shall require delivery to it, and shall not register the transfer of
this Certificate until its receipt of, an affidavit and agreement substantially
in the form attached as Exhibit C-1 to the Agreement (a "Transfer Affidavit and
Agreement") from the proposed Transferee, in form and substance satisfactory to
the Certificate Registrar, representing and warranting, among other things, that
such Transferee is a Permitted Transferee, that it is not acquiring its
Ownership Interest in this Certificate as a nominee, trustee or agent for any
Person that is not a Permitted Transferee, that for so long as it retains its
Ownership Interest in this Certificate, it will endeavor to remain a Permitted
Transferee, and that it has reviewed the provisions of Section 5.02(d) of the
Agreement and agrees to be bound by them. Notwithstanding the delivery of a
Transfer Affidavit and Agreement by a proposed Transferee, if the Certificate
Registrar has actual knowledge that the proposed Transferee is not a Permitted
Transferee, the Certificate Registrar shall not register the Transfer of an
Ownership Interest in this Certificate to such proposed Transferee.
Each Person holding or acquiring any Ownership Interest in this
Certificate shall agree (x) to require a Transfer Affidavit and Agreement from
any other Person to whom such Person attempts to transfer its Ownership Interest
herein and (y) not to transfer its Ownership Interest herein unless it provides
to the Certificate Registrar a certificate substantially in the form attached as
Exhibit C-2 to the Agreement stating that, among other things, it has no actual
knowledge that such other Person is not a Permitted Transferee.
A "Permitted Transferee" is any Transferee that is not a
Disqualified Organization or a Non-United States Person.
A "Disqualified Organization" is (i) the United States, any State or
political subdivision thereof, any possession of the United States, or any
agency or instrumentality of any of the foregoing (other than an instrumentality
which is a corporation if all of its activities are subject to tax and, except
for the Federal Home Loan Mortgage Corporation, a majority of whose board of
directors is not selected by such governmental unit), (ii) a foreign government,
any international organization, or any agency or instrumentality of any of the
foregoing, (iii) any organization (other than certain farmers' cooperatives
described in Section 521 of the Code) which is exempt from the tax imposed by
Chapter 1 of the Code (unless such organization is subject to the tax imposed by
Section 511 of the Code on unrelated business taxable income), (iv) rural
electric and telephone cooperatives described in Section 1381 of the Code and
(v) any other Person so designated by the REMIC Administrator based upon an
opinion of counsel that the holding of an Ownership Interest in a Residual
Certificate by such Person may cause the Trust Fund or any Person having an
Ownership Interest in any Class of Certificates (other than such Person) to
incur a liability for any federal tax imposed under the Code that would not
otherwise be imposed but for the Transfer of an Ownership Interest in a Residual
Certificate to such Person. The terms "United States", "State" and
"international organization" shall have the meanings set forth in Section 7701
of the Code or successor provisions.
A "Non-United States Person" is any Person other than a United
States Person. A "United States Person" is a citizen or resident of the United
States, a corporation, partnership or other entity created or organized in, or
under the laws of, the United States or any political subdivision thereof, an
estate whose income is subject to United States federal income tax regardless of
its source, or a trust if a court within the United States is able to exercise
primary supervision over the administration of the trust and one or more United
States persons have the authority to control all substantial decisions of the
trust, all within the meaning of Section 7701(a)(30) of the Code.
No service charge will be imposed for any registration of transfer
or exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
Prior to due presentment of this Certificate for registration of
transfer, the Depositor, the Mortgage Loan Seller, the Master Servicer, the
Special Servicer, the Trustee, the REMIC Administrator, the Certificate
Registrar and any agents of any of them may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of the
Depositor, the Mortgage Loan Seller, the Master Servicer, the Special Servicer,
the Trustee, the REMIC Administrator, the Certificate Registrar or any such
agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of (i) the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer or by any Majority
Certificateholder of the Controlling Class (other than the Depositor or the
Mortgage Loan Seller) at a price determined as provided in the Agreement of all
Mortgage Loans and any REO Properties remaining in the Trust Fund. The Agreement
permits, but does not require, any such Majority Certificateholder or the Master
Servicer to purchase from the Trust Fund all Mortgage Loans and any REO
Properties remaining therein. The exercise of such right will effect early
retirement of the Certificates; however, such right to purchase is subject to
the aggregate Stated Principal Balance of the Mortgage Pool at the time of
purchase being less than 1% of the Initial Pool Balance specified on the face
hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Mortgage Loan Seller, the Master Servicer, the Special Servicer,
the Trustee and the REMIC Administrator thereunder and the rights of the
Certificateholders thereunder, at any time by the Depositor, the Mortgage Loan
Seller, the Master Servicer, the Special Servicer, the Trustee and the REMIC
Administrator with the consent of the Holders of Certificates entitled to at
least 51% of the Voting Rights allocated to the affected Classes. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain circumstances,
including any amendment necessary to maintain the status of REMIC I or REMIC II
as a REMIC, without the consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York that are applicable to agreements negotiated, made
and to be performed in said State, and the obligations, rights and remedies of
the Holder hereof shall be determined in accordance with such laws.
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
Norwest Bank Minnesota, National
Association,
as Trustee
By:_______________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class R-I Certificates referred to in the
within-mentioned Agreement.
Dated:
Norwest Bank Minnesota, National
Association,
as Certificate Registrar
By:_______________________________________
Authorized Officer
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ____________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee) the beneficial ownership interest in the Trust Fund evidenced by the
within Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to the above
named assignee and delivery of such Commercial Mortgage Pass-Through Certificate
to the following address: ______________________________________________________
Dated:
____________________________________________
Signature by or on behalf of Assignor
____________________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to _______________ for the account of
____________________.
Distributions made by check (such check to be made payable to
________________) and all applicable statements and notices should be mailed
to_______________________________________________________________.
This information is provided by ______________, the assignee named
above, or ______________________________, as its agent.
<PAGE>
EXHIBIT A-17
FORM OF CLASS R-II CERTIFICATE
CLASS R-II COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 1999-2
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: August 1, 1999
Cut-off Date: August 1, 1999 Percentage Interest evidenced by
this Certificate in the related
Issue Date: August 17, 1999 Class: _____%
First Distribution Date: Approximate Aggregate unpaid
September 20, 1999 principal balance of the
Mortgage Pool as of the Cut-off
Master Servicer: Date, after deducting payments
ORIX Real Estate Capital Markets, LLC of principal due on or before
such date (the "Initial Pool
Balance"): $1,122,153,392
Special Servicer:
ORIX Real Estate Capital Markets, LLC Trustee and REMIC Administrator:
Norwest Bank Minnesota, National
Mortgage Loan Seller Association
Bank of America, N.A.
<PAGE>
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN NATIONSLINK
FUNDING CORPORATION, BANK OF AMERICA, N.A., NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, ORIX REAL ESTATE CAPITAL MARKETS, LLC 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.
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, Master Servicer,
Special Servicer, Trustee and REMIC Administrator identified above. To the
extent not defined herein, the capitalized terms used herein have the respective
meanings assigned in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the 20th day of each month or, if such 20th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date"), commencing
upon the first Distribution Date specified above, to the Person in whose name
this Certificate is registered at the close of business on the last Business Day
of the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed pursuant to the
Agreement on the applicable Distribution Date in respect of the Class of
Certificates to which this Certificate belongs. All distributions made under the
Agreement in respect of this Certificate will be made by the Trustee by wire
transfer in immediately available funds to the account of the Person entitled
thereto at a bank or other entity having appropriate facilities therefor, if
such Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of the Person entitled thereto, as such name and address
appear in the Certificate Register. Notwithstanding the above, the final
distribution in respect of this Certificate will be made after due notice by the
Trustee of the pendency of such distribution and only upon presentation and
surrender of this Certificate at the offices of the Certificate Registrar
appointed as provided in the Agreement or such other location as may be
specified in such notice.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, Distribution Account and,
if established, the REO Account may be made from time to time for purposes other
than, and, in certain cases, prior to, distributions to Certificateholders, such
purposes including the reimbursement of advances made, or certain expenses
incurred, with respect to the Mortgage Loans and the payment of interest on such
advances and expenses.
The Certificates are issuable in fully registered form only without
coupons in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
Each Person who has or who acquires any Ownership Interest in this
Certificate shall be deemed by the acceptance or acquisition of such Ownership
Interest to have agreed to be bound by the provisions of Section 5.02(d) of the
Agreement and, if any purported Transferee shall become a Holder of this
Certificate in violation of the provisions of such Section 5.02(d), to have
irrevocably authorized the Trustee under clause (ii)(A) of such Section 5.02(d)
to deliver payments to a Person other than such Person and to have irrevocably
authorized the Trustee under clause (ii)(B) of such Section 5.02(d) to negotiate
the terms of any mandatory disposition and to execute all instruments of
transfer and to do all other things necessary in connection with any such
disposition. Each Person holding or acquiring any Ownership Interest in this
Certificate must be a Permitted Transferee and shall promptly notify the Master
Servicer, the Trustee and the REMIC Administrator of any change or impending
change in its status as a Permitted Transferee. In connection with any proposed
transfer of any Ownership Interest in this Certificate, the Certificate
Registrar shall require delivery to it, and shall not register the transfer of
this Certificate until its receipt of, an affidavit and agreement substantially
in the form attached as Exhibit C-1 to the Agreement (a "Transfer Affidavit and
Agreement") from the proposed Transferee, in form and substance satisfactory to
the Certificate Registrar, representing and warranting, among other things, that
such Transferee is a Permitted Transferee, that it is not acquiring its
Ownership Interest in this Certificate as a nominee, trustee or agent for any
Person that is not a Permitted Transferee, that for so long as it retains its
Ownership Interest in this Certificate, it will endeavor to remain a Permitted
Transferee, and that it has reviewed the provisions of Section 5.02(d) of the
Agreement and agrees to be bound by them. Notwithstanding the delivery of a
Transfer Affidavit and Agreement by a proposed Transferee, if the Certificate
Registrar has actual knowledge that the proposed Transferee is not a Permitted
Transferee, the Certificate Registrar shall not register the Transfer of an
Ownership Interest in this Certificate to such proposed Transferee.
Each Person holding or acquiring any Ownership Interest in this
Certificate shall agree (x) to require a Transfer Affidavit and Agreement from
any other Person to whom such Person attempts to transfer its Ownership Interest
herein and (y) not to transfer its Ownership Interest herein unless it provides
to the Certificate Registrar a certificate substantially in the form attached as
Exhibit C-2 to the Agreement stating that, among other things, it has no actual
knowledge that such other Person is not a Permitted Transferee.
A "Permitted Transferee" is any Transferee that is not a
Disqualified Organization or a Non-United States Person.
A "Disqualified Organization" is (i) the United States, any State or
political subdivision thereof, any possession of the United States, or any
agency or instrumentality of any of the foregoing (other than an instrumentality
which is a corporation if all of its activities are subject to tax and, except
for the Federal Home Loan Mortgage Corporation, a majority of whose board of
directors is not selected by such governmental unit), (ii) a foreign government,
any international organization, or any agency or instrumentality of any of the
foregoing, (iii) any organization (other than certain farmers' cooperatives
described in Section 521 of the Code) which is exempt from the tax imposed by
Chapter 1 of the Code (unless such organization is subject to the tax imposed by
Section 511 of the Code on unrelated business taxable income), (iv) rural
electric and telephone cooperatives described in Section 1381 of the Code and
(v) any other Person so designated by the REMIC Administrator based upon an
opinion of counsel that the holding of an Ownership Interest in a Residual
Certificate by such Person may cause the Trust Fund or any Person having an
Ownership Interest in any Class of Certificates (other than such Person) to
incur a liability for any federal tax imposed under the Code that would not
otherwise be imposed but for the Transfer of an Ownership Interest in a Residual
Certificate to such Person. The terms "United States", "State" and
"international organization" shall have the meanings set forth in Section 7701
of the Code or successor provisions.
A "Non-United States Person" is any Person other than a United
States Person. A "United States Person" is a citizen or resident of the United
States, a corporation, partnership or other entity created or organized in, or
under the laws of, the United States or any political subdivision thereof, or an
estate whose income is subject to United States federal income tax regardless of
its source, or a trust if a court within the United States is able to exercise
primary supervision over the administration of the trust and one or more United
States persons have the authority to control all substantial decisions of the
trust, all within the meaning of Section 7701(a)(30) of the Code.
No service charge will be imposed for any registration of transfer
or exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
Prior to due presentment of this Certificate for registration of
transfer, the Depositor, the Mortgage Loan Seller, the Master Servicer, the
Special Servicer, the Trustee, the REMIC Administrator, the Certificate
Registrar and any agents of any of them may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of the
Depositor, the Mortgage Loan Seller, the Master Servicer, the Special Servicer,
the Trustee, the REMIC Administrator, the Certificate Registrar or any such
agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of (i) the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer or by any Majority
Certificateholder of the Controlling Class (other than the Depositor or the
Mortgage Loan Seller) at a price determined as provided in the Agreement of all
Mortgage Loans and any REO Properties remaining in the Trust Fund. The Agreement
permits, but does not require, any such Majority Certificateholder or the Master
Servicer to purchase from the Trust Fund all Mortgage Loans and any REO
Properties remaining therein. The exercise of such right will effect early
retirement of the Certificates; however, such right to purchase is subject to
the aggregate Stated Principal Balance of the Mortgage Pool at the time of
purchase being less than 1% of the Initial Pool Balance specified on the face
hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Mortgage Loan Seller, the Master Servicer, the Special Servicer,
the Trustee and the REMIC Administrator thereunder and the rights of the
Certificateholders thereunder, at any time by the Depositor, the Mortgage Loan
Seller, the Master Servicer, the Special Servicer, the Trustee and the REMIC
Administrator with the consent of the Holders of Certificates entitled to at
least 51% of the Voting Rights allocated to the affected Classes. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain circumstances,
including any amendment necessary to maintain the status of REMIC I or REMIC II
as a REMIC, without the consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York that are applicable to agreements negotiated, made
and to be performed in said State, and the obligations, rights and remedies of
the Holder hereof shall be determined in accordance with such laws.
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
Norwest Bank Minnesota, National
Association,
as Trustee
By:_______________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class R-II Certificates referred to in the
within-mentioned Agreement.
Dated:
Norwest Bank Minnesota, National
Association,
as Certificate Registrar
By:_______________________________________
Authorized Officer
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ______________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee) the beneficial ownership interest in the Trust Fund evidenced by the
within Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to the above
named assignee and delivery of such Commercial Mortgage Pass-Through Certificate
to the following address: ______________________________________________________
Dated:
____________________________________________
Signature by or on behalf of Assignor
____________________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to ________________ for the account
of ___________________.
Distributions made by check (such check to be made payable to
______________________) and all applicable statements and notices should be
mailed to ______________________________.
This information is provided by _____________________, the assignee
named above, or ___________________________, as its agent.
<PAGE>
EXHIBIT A-18
FORM OF CLASS R-III CERTIFICATE
CLASS R-III COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 1999-2
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 Certificate No. R-III - __
Servicing Agreement: October 1, 1999
Cut-off Date: August 1, 1999 Percentage Interest evidenced by
this Certificate in the related
Issue Date: October 14, 1999 Class: _____%
First Distribution Date: Approximate Aggregate unpaid
November 22, 1999 principal balance of the
Mortgage Pool as of the Cut-off
Master Servicer: Date, after deducting payments
ORIX Real Estate Capital Markets, LLC of principal due on or before
such date (the "Initial Pool
Balance"): $1,122,153,392
Special Servicer:
ORIX Real Estate Capital Markets, LLC Trustee and REMIC Administrator:
Norwest Bank Minnesota, National
Mortgage Loan Seller Association
Bank of America, N.A.
<PAGE>
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN NATIONSLINK
FUNDING CORPORATION, BANK OF AMERICA, N.A., NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, ORIX REAL ESTATE CAPITAL MARKETS, LLC 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.
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, Master Servicer,
Special Servicer, Trustee and REMIC Administrator identified above. To the
extent not defined herein, the capitalized terms used herein have the respective
meanings assigned in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the 20th day of each month or, if such 20th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date"), commencing
upon the first Distribution Date specified above, to the Person in whose name
this Certificate is registered at the close of business on the last Business Day
of the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed pursuant to the
Agreement on the applicable Distribution Date in respect of the Class of
Certificates to which this Certificate belongs. All distributions made under the
Agreement in respect of this Certificate will be made by the Trustee by wire
transfer in immediately available funds to the account of the Person entitled
thereto at a bank or other entity having appropriate facilities therefor, if
such Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of the Person entitled thereto, as such name and address
appear in the Certificate Register. Notwithstanding the above, the final
distribution in respect of this Certificate will be made after due notice by the
Trustee of the pendency of such distribution and only upon presentation and
surrender of this Certificate at the offices of the Certificate Registrar
appointed as provided in the Agreement or such other location as may be
specified in such notice.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, Distribution Account and,
if established, the REO Account may be made from time to time for purposes other
than, and, in certain cases, prior to, distributions to Certificateholders, such
purposes including the reimbursement of advances made, or certain expenses
incurred, with respect to the Mortgage Loans and the payment of interest on such
advances and expenses.
The Certificates are issuable in fully registered form only without
coupons in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
Each Person who has or who acquires any Ownership Interest in this
Certificate shall be deemed by the acceptance or acquisition of such Ownership
Interest to have agreed to be bound by the provisions of Section 5.02(d) of the
Agreement and, if any purported Transferee shall become a Holder of this
Certificate in violation of the provisions of such Section 5.02(d), to have
irrevocably authorized the Trustee under clause (ii)(A) of such Section 5.02(d)
to deliver payments to a Person other than such Person and to have irrevocably
authorized the Trustee under clause (ii)(B) of such Section 5.02(d) to negotiate
the terms of any mandatory disposition and to execute all instruments of
transfer and to do all other things necessary in connection with any such
disposition. Each Person holding or acquiring any Ownership Interest in this
Certificate must be a Permitted Transferee and shall promptly notify the Master
Servicer, the Trustee and the REMIC Administrator of any change or impending
change in its status as a Permitted Transferee. In connection with any proposed
transfer of any Ownership Interest in this Certificate, the Certificate
Registrar shall require delivery to it, and shall not register the transfer of
this Certificate until its receipt of, an affidavit and agreement substantially
in the form attached as Exhibit C-1 to the Agreement (a "Transfer Affidavit and
Agreement") from the proposed Transferee, in form and substance satisfactory to
the Certificate Registrar, representing and warranting, among other things, that
such Transferee is a Permitted Transferee, that it is not acquiring its
Ownership Interest in this Certificate as a nominee, trustee or agent for any
Person that is not a Permitted Transferee, that for so long as it retains its
Ownership Interest in this Certificate, it will endeavor to remain a Permitted
Transferee, and that it has reviewed the provisions of Section 5.02(d) of the
Agreement and agrees to be bound by them. Notwithstanding the delivery of a
Transfer Affidavit and Agreement by a proposed Transferee, if the Certificate
Registrar has actual knowledge that the proposed Transferee is not a Permitted
Transferee, the Certificate Registrar shall not register the Transfer of an
Ownership Interest in this Certificate to such proposed Transferee.
Each Person holding or acquiring any Ownership Interest in this
Certificate shall agree (x) to require a Transfer Affidavit and Agreement from
any other Person to whom such Person attempts to transfer its Ownership Interest
herein and (y) not to transfer its Ownership Interest herein unless it provides
to the Certificate Registrar a certificate substantially in the form attached as
Exhibit C-2 to the Agreement stating that, among other things, it has no actual
knowledge that such other Person is not a Permitted Transferee.
A "Permitted Transferee" is any Transferee that is not a
Disqualified Organization or a Non-United States Person.
A "Disqualified Organization" is (i) the United States, any State or
political subdivision thereof, any possession of the United States, or any
agency or instrumentality of any of the foregoing (other than an instrumentality
which is a corporation if all of its activities are subject to tax and, except
for the Federal Home Loan Mortgage Corporation, a majority of whose board of
directors is not selected by such governmental unit), (ii) a foreign government,
any international organization, or any agency or instrumentality of any of the
foregoing, (iii) any organization (other than certain farmers' cooperatives
described in Section 521 of the Code) which is exempt from the tax imposed by
Chapter 1 of the Code (unless such organization is subject to the tax imposed by
Section 511 of the Code on unrelated business taxable income), (iv) rural
electric and telephone cooperatives described in Section 1381 of the Code and
(v) any other Person so designated by the REMIC Administrator based upon an
opinion of counsel that the holding of an Ownership Interest in a Residual
Certificate by such Person may cause the Trust Fund or any Person having an
Ownership Interest in any Class of Certificates (other than such Person) to
incur a liability for any federal tax imposed under the Code that would not
otherwise be imposed but for the Transfer of an Ownership Interest in a Residual
Certificate to such Person. The terms "United States", "State" and
"international organization" shall have the meanings set forth in Section 7701
of the Code or successor provisions.
A "Non-United States Person" is any Person other than a United
States Person. A "United States Person" is a citizen or resident of the United
States, a corporation, partnership or other entity created or organized in, or
under the laws of, the United States or any political subdivision thereof, or an
estate whose income is subject to United States federal income tax regardless of
its source, or a trust if a court within the United States is able to exercise
primary supervision over the administration of the trust and one or more United
States persons have the authority to control all substantial decisions of the
trust, all within the meaning of Section 7701(a)(30) of the Code.
No service charge will be imposed for any registration of transfer
or exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
Prior to due presentment of this Certificate for registration of
transfer, the Depositor, the Mortgage Loan Seller, the Master Servicer, the
Special Servicer, the Trustee, the REMIC Administrator, the Certificate
Registrar and any agents of any of them may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of the
Depositor, the Mortgage Loan Seller, the Master Servicer, the Special Servicer,
the Trustee, the REMIC Administrator, the Certificate Registrar or any such
agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of (i) the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer or by any Majority
Certificateholder of the Controlling Class (other than the Depositor or the
Mortgage Loan Seller) at a price determined as provided in the Agreement of all
Mortgage Loans and any REO Properties remaining in the Trust Fund. The Agreement
permits, but does not require, any such Majority Certificateholder or the Master
Servicer to purchase from the Trust Fund all Mortgage Loans and any REO
Properties remaining therein. The exercise of such right will effect early
retirement of the Certificates; however, such right to purchase is subject to
the aggregate Stated Principal Balance of the Mortgage Pool at the time of
purchase being less than 1% of the Initial Pool Balance specified on the face
hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Mortgage Loan Seller, the Master Servicer, the Special Servicer,
the Trustee and the REMIC Administrator thereunder and the rights of the
Certificateholders thereunder, at any time by the Depositor, the Mortgage Loan
Seller, the Master Servicer, the Special Servicer, the Trustee and the REMIC
Administrator with the consent of the Holders of Certificates entitled to at
least 51% of the Voting Rights allocated to the affected Classes. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain circumstances,
including any amendment necessary to maintain the status of REMIC I, 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 A-19
FORM OF CLASS R-IIIU CERTIFICATE
CLASS R-IIIU COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 1999-2
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 Second Amended and Restated Pooling Certificate No. R-IIIU - __
and Servicing Agreement: November 1, 1999
Cut-off Date: November 10, 1999 Percentage Interest evidenced by
this Certificate in the related
Issue Date: November 23, 1999 Class: _____%
First Distribution Date: Approximate Aggregate unpaid
December 20, 1999 principal balance of the
Mortgage Pool as of the Cut-off
Master Servicer: Date, after deducting payments
ORIX Real Estate Capital Markets, LLC of principal due on or before
such date (the "Initial Pool
Balance"): $1,115,186,748
Special Servicer:
ORIX Real Estate Capital Markets, LLC Trustee and REMIC Administrator:
Norwest Bank Minnesota, National
Mortgage Loan Seller Association
Bank of America, N.A.
<PAGE>
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN NATIONSLINK
FUNDING CORPORATION, BANK OF AMERICA, N.A., NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, ORIX REAL ESTATE CAPITAL MARKETS, LLC 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.
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, Master Servicer,
Special Servicer, Trustee and REMIC Administrator identified above. To the
extent not defined herein, the capitalized terms used herein have the respective
meanings assigned in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the 20th day of each month or, if such 20th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date"), commencing
upon the first Distribution Date specified above, to the Person in whose name
this Certificate is registered at the close of business on the last Business Day
of the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed pursuant to the
Agreement on the applicable Distribution Date in respect of the Class of
Certificates to which this Certificate belongs. All distributions made under the
Agreement in respect of this Certificate will be made by the Trustee by wire
transfer in immediately available funds to the account of the Person entitled
thereto at a bank or other entity having appropriate facilities therefor, if
such Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of the Person entitled thereto, as such name and address
appear in the Certificate Register. Notwithstanding the above, the final
distribution in respect of this Certificate will be made after due notice by the
Trustee of the pendency of such distribution and only upon presentation and
surrender of this Certificate at the offices of the Certificate Registrar
appointed as provided in the Agreement or such other location as may be
specified in such notice.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, Distribution Account and,
if established, the REO Account may be made from time to time for purposes other
than, and, in certain cases, prior to, distributions to Certificateholders, such
purposes including the reimbursement of advances made, or certain expenses
incurred, with respect to the Mortgage Loans and the payment of interest on such
advances and expenses.
The Certificates are issuable in fully registered form only without
coupons in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
Each Person who has or who acquires any Ownership Interest in this
Certificate shall be deemed by the acceptance or acquisition of such Ownership
Interest to have agreed to be bound by the provisions of Section 5.02(d) of the
Agreement and, if any purported Transferee shall become a Holder of this
Certificate in violation of the provisions of such Section 5.02(d), to have
irrevocably authorized the Trustee under clause (ii)(A) of such Section 5.02(d)
to deliver payments to a Person other than such Person and to have irrevocably
authorized the Trustee under clause (ii)(B) of such Section 5.02(d) to negotiate
the terms of any mandatory disposition and to execute all instruments of
transfer and to do all other things necessary in connection with any such
disposition. Each Person holding or acquiring any Ownership Interest in this
Certificate must be a Permitted Transferee and shall promptly notify the Master
Servicer, the Trustee and the REMIC Administrator of any change or impending
change in its status as a Permitted Transferee. In connection with any proposed
transfer of any Ownership Interest in this Certificate, the Certificate
Registrar shall require delivery to it, and shall not register the transfer of
this Certificate until its receipt of, an affidavit and agreement substantially
in the form attached as Exhibit C-1 to the Agreement (a "Transfer Affidavit and
Agreement") from the proposed Transferee, in form and substance satisfactory to
the Certificate Registrar, representing and warranting, among other things, that
such Transferee is a Permitted Transferee, that it is not acquiring its
Ownership Interest in this Certificate as a nominee, trustee or agent for any
Person that is not a Permitted Transferee, that for so long as it retains its
Ownership Interest in this Certificate, it will endeavor to remain a Permitted
Transferee, and that it has reviewed the provisions of Section 5.02(d) of the
Agreement and agrees to be bound by them. Notwithstanding the delivery of a
Transfer Affidavit and Agreement by a proposed Transferee, if the Certificate
Registrar has actual knowledge that the proposed Transferee is not a Permitted
Transferee, the Certificate Registrar shall not register the Transfer of an
Ownership Interest in this Certificate to such proposed Transferee.
Each Person holding or acquiring any Ownership Interest in this
Certificate shall agree (x) to require a Transfer Affidavit and Agreement from
any other Person to whom such Person attempts to transfer its Ownership Interest
herein and (y) not to transfer its Ownership Interest herein unless it provides
to the Certificate Registrar a certificate substantially in the form attached as
Exhibit C-2 to the Agreement stating that, among other things, it has no actual
knowledge that such other Person is not a Permitted Transferee.
A "Permitted Transferee" is any Transferee that is not a
Disqualified Organization or a Non-United States Person.
A "Disqualified Organization" is (i) the United States, any State or
political subdivision thereof, any possession of the United States, or any
agency or instrumentality of any of the foregoing (other than an instrumentality
which is a corporation if all of its activities are subject to tax and, except
for the Federal Home Loan Mortgage Corporation, a majority of whose board of
directors is not selected by such governmental unit), (ii) a foreign government,
any international organization, or any agency or instrumentality of any of the
foregoing, (iii) any organization (other than certain farmers' cooperatives
described in Section 521 of the Code) which is exempt from the tax imposed by
Chapter 1 of the Code (unless such organization is subject to the tax imposed by
Section 511 of the Code on unrelated business taxable income), (iv) rural
electric and telephone cooperatives described in Section 1381 of the Code and
(v) any other Person so designated by the REMIC Administrator based upon an
opinion of counsel that the holding of an Ownership Interest in a Residual
Certificate by such Person may cause the Trust Fund or any Person having an
Ownership Interest in any Class of Certificates (other than such Person) to
incur a liability for any federal tax imposed under the Code that would not
otherwise be imposed but for the Transfer of an Ownership Interest in a Residual
Certificate to such Person. The terms "United States", "State" and
"international organization" shall have the meanings set forth in Section 7701
of the Code or successor provisions.
A "Non-United States Person" is any Person other than a United
States Person. A "United States Person" is a citizen or resident of the United
States, a corporation, partnership or other entity created or organized in, or
under the laws of, the United States or any political subdivision thereof, or an
estate whose income is subject to United States federal income tax regardless of
its source, or a trust if a court within the United States is able to exercise
primary supervision over the administration of the trust and one or more United
States persons have the authority to control all substantial decisions of the
trust, all within the meaning of Section 7701(a)(30) of the Code.
No service charge will be imposed for any registration of transfer
or exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
Prior to due presentment of this Certificate for registration of
transfer, the Depositor, the Mortgage Loan Seller, the Master Servicer, the
Special Servicer, the Trustee, the REMIC Administrator, the Certificate
Registrar and any agents of any of them may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of the
Depositor, the Mortgage Loan Seller, the Master Servicer, the Special Servicer,
the Trustee, the REMIC Administrator, the Certificate Registrar or any such
agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of (i) the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer or by any Majority
Certificateholder of the Controlling Class (other than the Depositor or the
Mortgage Loan Seller) at a price determined as provided in the Agreement of all
Mortgage Loans and any REO Properties remaining in the Trust Fund. The Agreement
permits, but does not require, any such Majority Certificateholder or the Master
Servicer to purchase from the Trust Fund all Mortgage Loans and any REO
Properties remaining therein. The exercise of such right will effect early
retirement of the Certificates; however, such right to purchase is subject to
the aggregate Stated Principal Balance of the Mortgage Pool at the time of
purchase being less than 1% of the Initial Pool Balance specified on the face
hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Mortgage Loan Seller, the Master Servicer, the Special Servicer,
the Trustee and the REMIC Administrator thereunder and the rights of the
Certificateholders thereunder, at any time by the Depositor, the Mortgage Loan
Seller, the Master Servicer, the Special Servicer, the Trustee and the REMIC
Administrator with the consent of the Holders of Certificates entitled to at
least 51% of the Voting Rights allocated to the affected Classes. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain circumstances,
including any amendment necessary to maintain the status of REMIC I, REMIC II,
REMIC III, REMIC IIIU, or REMIC IV 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-IIIU 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-20
FORM OF CLASS R-IV CERTIFICATE
CLASS R-IV COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 1999-2
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 Second Amended and Restated Pooling Certificate No. R-IV - __
and Servicing Agreement: November 1, 1999
Cut-off Date: November 10, 1999 Percentage Interest evidenced by
this Certificate in the related
Issue Date: November 23, 1999 Class: _____%
First Distribution Date: Approximate Aggregate unpaid
December 20, 1999 principal balance of the
Mortgage Pool as of the Cut-off
Master Servicer: Date, after deducting payments
ORIX Real Estate Capital Markets, LLC of principal due on or before
such date (the "Initial Pool
Balance"): $1,115,186,748
Special Servicer:
ORIX Real Estate Capital Markets, LLC Trustee and REMIC Administrator:
Norwest Bank Minnesota, National
Mortgage Loan Seller Association
Bank of America, N.A.
<PAGE>
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN NATIONSLINK
FUNDING CORPORATION, BANK OF AMERICA, N.A., NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, ORIX REAL ESTATE CAPITAL MARKETS, LLC 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.
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, Master Servicer,
Special Servicer, Trustee and REMIC Administrator identified above. To the
extent not defined herein, the capitalized terms used herein have the respective
meanings assigned in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the 20th day of each month or, if such 20th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date"), commencing
upon the first Distribution Date specified above, to the Person in whose name
this Certificate is registered at the close of business on the last Business Day
of the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed pursuant to the
Agreement on the applicable Distribution Date in respect of the Class of
Certificates to which this Certificate belongs. All distributions made under the
Agreement in respect of this Certificate will be made by the Trustee by wire
transfer in immediately available funds to the account of the Person entitled
thereto at a bank or other entity having appropriate facilities therefor, if
such Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of the Person entitled thereto, as such name and address
appear in the Certificate Register. Notwithstanding the above, the final
distribution in respect of this Certificate will be made after due notice by the
Trustee of the pendency of such distribution and only upon presentation and
surrender of this Certificate at the offices of the Certificate Registrar
appointed as provided in the Agreement or such other location as may be
specified in such notice.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, Distribution Account and,
if established, the REO Account may be made from time to time for purposes other
than, and, in certain cases, prior to, distributions to Certificateholders, such
purposes including the reimbursement of advances made, or certain expenses
incurred, with respect to the Mortgage Loans and the payment of interest on such
advances and expenses.
The Certificates are issuable in fully registered form only without
coupons in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
Each Person who has or who acquires any Ownership Interest in this
Certificate shall be deemed by the acceptance or acquisition of such Ownership
Interest to have agreed to be bound by the provisions of Section 5.02(d) of the
Agreement and, if any purported Transferee shall become a Holder of this
Certificate in violation of the provisions of such Section 5.02(d), to have
irrevocably authorized the Trustee under clause (ii)(A) of such Section 5.02(d)
to deliver payments to a Person other than such Person and to have irrevocably
authorized the Trustee under clause (ii)(B) of such Section 5.02(d) to negotiate
the terms of any mandatory disposition and to execute all instruments of
transfer and to do all other things necessary in connection with any such
disposition. Each Person holding or acquiring any Ownership Interest in this
Certificate must be a Permitted Transferee and shall promptly notify the Master
Servicer, the Trustee and the REMIC Administrator of any change or impending
change in its status as a Permitted Transferee. In connection with any proposed
transfer of any Ownership Interest in this Certificate, the Certificate
Registrar shall require delivery to it, and shall not register the transfer of
this Certificate until its receipt of, an affidavit and agreement substantially
in the form attached as Exhibit C-1 to the Agreement (a "Transfer Affidavit and
Agreement") from the proposed Transferee, in form and substance satisfactory to
the Certificate Registrar, representing and warranting, among other things, that
such Transferee is a Permitted Transferee, that it is not acquiring its
Ownership Interest in this Certificate as a nominee, trustee or agent for any
Person that is not a Permitted Transferee, that for so long as it retains its
Ownership Interest in this Certificate, it will endeavor to remain a Permitted
Transferee, and that it has reviewed the provisions of Section 5.02(d) of the
Agreement and agrees to be bound by them. Notwithstanding the delivery of a
Transfer Affidavit and Agreement by a proposed Transferee, if the Certificate
Registrar has actual knowledge that the proposed Transferee is not a Permitted
Transferee, the Certificate Registrar shall not register the Transfer of an
Ownership Interest in this Certificate to such proposed Transferee.
Each Person holding or acquiring any Ownership Interest in this
Certificate shall agree (x) to require a Transfer Affidavit and Agreement from
any other Person to whom such Person attempts to transfer its Ownership Interest
herein and (y) not to transfer its Ownership Interest herein unless it provides
to the Certificate Registrar a certificate substantially in the form attached as
Exhibit C-2 to the Agreement stating that, among other things, it has no actual
knowledge that such other Person is not a Permitted Transferee.
A "Permitted Transferee" is any Transferee that is not a
Disqualified Organization or a Non-United States Person.
A "Disqualified Organization" is (i) the United States, any State or
political subdivision thereof, any possession of the United States, or any
agency or instrumentality of any of the foregoing (other than an instrumentality
which is a corporation if all of its activities are subject to tax and, except
for the Federal Home Loan Mortgage Corporation, a majority of whose board of
directors is not selected by such governmental unit), (ii) a foreign government,
any international organization, or any agency or instrumentality of any of the
foregoing, (iii) any organization (other than certain farmers' cooperatives
described in Section 521 of the Code) which is exempt from the tax imposed by
Chapter 1 of the Code (unless such organization is subject to the tax imposed by
Section 511 of the Code on unrelated business taxable income), (iv) rural
electric and telephone cooperatives described in Section 1381 of the Code and
(v) any other Person so designated by the REMIC Administrator based upon an
opinion of counsel that the holding of an Ownership Interest in a Residual
Certificate by such Person may cause the Trust Fund or any Person having an
Ownership Interest in any Class of Certificates (other than such Person) to
incur a liability for any federal tax imposed under the Code that would not
otherwise be imposed but for the Transfer of an Ownership Interest in a Residual
Certificate to such Person. The terms "United States", "State" and
"international organization" shall have the meanings set forth in Section 7701
of the Code or successor provisions.
A "Non-United States Person" is any Person other than a United
States Person. A "United States Person" is a citizen or resident of the United
States, a corporation, partnership or other entity created or organized in, or
under the laws of, the United States or any political subdivision thereof, or an
estate whose income is subject to United States federal income tax regardless of
its source, or a trust if a court within the United States is able to exercise
primary supervision over the administration of the trust and one or more United
States persons have the authority to control all substantial decisions of the
trust, all within the meaning of Section 7701(a)(30) of the Code.
No service charge will be imposed for any registration of transfer
or exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
Prior to due presentment of this Certificate for registration of
transfer, the Depositor, the Mortgage Loan Seller, the Master Servicer, the
Special Servicer, the Trustee, the REMIC Administrator, the Certificate
Registrar and any agents of any of them may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of the
Depositor, the Mortgage Loan Seller, the Master Servicer, the Special Servicer,
the Trustee, the REMIC Administrator, the Certificate Registrar or any such
agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of (i) the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer or by any Majority
Certificateholder of the Controlling Class (other than the Depositor or the
Mortgage Loan Seller) at a price determined as provided in the Agreement of all
Mortgage Loans and any REO Properties remaining in the Trust Fund. The Agreement
permits, but does not require, any such Majority Certificateholder or the Master
Servicer to purchase from the Trust Fund all Mortgage Loans and any REO
Properties remaining therein. The exercise of such right will effect early
retirement of the Certificates; however, such right to purchase is subject to
the aggregate Stated Principal Balance of the Mortgage Pool at the time of
purchase being less than 1% of the Initial Pool Balance specified on the face
hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Mortgage Loan Seller, the Master Servicer, the Special Servicer,
the Trustee and the REMIC Administrator thereunder and the rights of the
Certificateholders thereunder, at any time by the Depositor, the Mortgage Loan
Seller, the Master Servicer, the Special Servicer, the Trustee and the REMIC
Administrator with the consent of the Holders of Certificates entitled to at
least 51% of the Voting Rights allocated to the affected Classes. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain circumstances,
including any amendment necessary to maintain the status of REMIC I, REMIC II,
REMIC III, REMIC IIIU, or REMIC IV 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-IV 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
Attn: Corporate Trust Services (CMBS)--MAC # N9303-121
NationsLink Funding Corporation
Bank of America Corporate Center
100 North Tryon Street
Charlotte, North Carolina 28255
Re: Transfer of NationsLink Funding Corporation, Commercial
Mortgage Pass-Through Certificates, Series 1999-2
-------------------------------------------------------
Ladies and Gentlemen:
This letter is delivered pursuant to Section 5.02 of the Second
Amended and Restated Pooling and Servicing Agreement dated as of November 1,
1999 (the "Pooling and Servicing Agreement"), by and among NationsLink Funding
Corporation, as Depositor, Bank of America, N.A., as Mortgage Loan Seller, ORIX
Real Estate Capital Markets, LLC, as Master Servicer and as Special Servicer,
and Norwest Bank Minnesota, National Association, as Trustee on behalf of the
holders of NationsLink Funding Corporation, Commercial Mortgage Pass-Through
Certificates, Series 1999-2 (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:*
[ ] 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.
- -----------------
* Purchaser must include one of the following two certifications.
2. The Purchaser's intention is to acquire the Certificate (a) for
investment for the Purchaser's own account or (b) for resale to (i) "qualified
institutional buyers" in transactions under Rule 144A, and not in any event with
the view to, or for resale in connection with, any distribution thereof or (ii)
to institutional "accredited investors" meeting the requirements of Rule
501(a)(1), (2), (3) or (7) of Regulation D promulgated under the 1933 Act,
pursuant to any other exemption from the registration requirements of the 1933
Act, subject in the case of this clause (ii) to (w) the receipt by the
Certificate Registrar of a letter substantially in the form hereof, (x) the
receipt by the Certificate Registrar of an opinion of counsel acceptable to the
Certificate Registrar that such reoffer, resale, pledge or transfer is in
compliance with the 1933 Act, (y) the receipt by the Certificate Registrar of
such other evidence acceptable to the Certificate Registrar that such reoffer,
resale, pledge or transfer is in compliance with the 1933 Act and other
applicable laws and (z) a written undertaking to reimburse the Trust for any
costs incurred by it in connection with the proposed transfer. The Purchaser
understands that the Certificate (and any subsequent Certificate) has not been
registered under the 1933 Act, by reason of a specified exemption from the
registration provisions of the 1933 Act which depends upon, among other things,
the bona fide nature of the Purchaser's investment intent (or intent to resell
to only certain investors in certain exempted transactions) as expressed herein.
3. The Purchaser has reviewed the Private Placement Memorandum
relating to the Certificates (the "Private Placement Memorandum") and the
agreements and other materials referred to therein and has had the opportunity
to ask questions and receive answers concerning the terms and conditions of the
transactions contemplated by the Private Placement Memorandum.
4. The Purchaser acknowledges that the Certificate (and any
Certificate issued on transfer or exchange thereof) has not been registered or
qualified under the 1933 Act or the securities laws of any State or any other
jurisdiction, and that the Certificate cannot be resold unless it is registered
or qualified thereunder or unless an exemption from such registration or
qualification is available.
5. The Purchaser hereby undertakes to be bound by the terms and
conditions of the Pooling and Servicing Agreement in its capacity as an owner of
a Certificate or Certificates, as the case may be (each, a "Certificateholder"),
in all respects as if it were a signatory thereto. This undertaking is made for
the benefit of the Trust, the Certificate Registrar and all Certificateholders
present and future.
6. The Purchaser will not sell or otherwise transfer any portion of
the Certificate or Certificates, except in compliance with Section 5.02 of the
Pooling and Servicing Agreement.
7. Check one of the following:*
[ ] The Purchaser is a U.S. Person (as defined below) and it has
attached hereto an Internal Revenue Service ("IRS") Form W-9
(or successor form).
[ ] The Purchaser is not a U.S. Person and under applicable law in
effect on the date hereof, no taxes will be required to be
withheld by the Trustee (or its agent) with respect to
distributions to be made on the Certificate. The Purchaser has
attached hereto either (i) a duly executed IRS Form W-8 (or
successor form), which identifies such Purchaser as the
beneficial owner of the Certificate and states that such
Purchaser is not a U.S. Person or (ii) two duly executed
copies of IRS Form 4224 (or successor form), which identify
such Purchaser as the beneficial owner of the Certificate and
state that interest and original issue discount on the
Certificate and Permitted Investments is, or is expected to
be, effectively connected with a U.S. trade or business. The
Purchaser agrees to provide to the Certificate Registrar
updated IRS Forms W-8 or IRS Forms 4224, as the case may be,
any applicable successor IRS forms, or such other
certifications as the Certificate Registrar may reasonably
request, on or before the date that any such IRS form or
certification expires or becomes obsolete, or promptly after
the occurrence of any event requiring a change in the most
recent IRS form of certification furnished by it to the
Certificate Registrar.
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:**
[ ] (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:
- ------------------
* Each Purchaser must include one of the two alternative certifications.
** Only to be filled out by Purchasers of Definitive Certificates. Please
select (a) or (b). For holders of Definitive Certificates, wire transfers
are only available if such holder's Definitive Certificates have an
aggregate Certificate Balance or Notional Amount, as applicable, of at
least U.S. $5,000,000.
<PAGE>
EXHIBIT C-1
FORM OF TRANSFER AFFIDAVIT AND AGREEMENT
PURSUANT TO SECTION 5.02(D)(I)(B)
STATE OF )
) participation.:
COUNTY OF )
[NAME OF OFFICER], being first duly sworn, deposes and says that:
1. He/She is the [Title of Officer] of [Name of Prospective
Transferee] (the prospective transferee (the "Transferee") of a NationsLink
Funding Corporation Class, R-[I] [II] Commercial Mortgage Pass-Through
Certificate, Series 1999-2, 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 Second Amended and Restated Pooling
and Servicing Agreement pursuant to which the Residual Certificate was issued
(the "Pooling and Servicing Agreement").
2. The Transferee (i) is [and, as of [date of transfer], will be] a
"Permitted Transferee" and will endeavor to remain a "Permitted Transferee" for
so long as it holds the Residual Certificate, and (ii) is acquiring the Residual
Certificate for its own account or for the account of another prospective
transferee from which it has received an affidavit in substantially the same
form as this affidavit. A "Permitted Transferee" is any person other than a
"disqualified organization" or a "non-United States person". (For this purpose:
(i) a "disqualified organization" means the United States or a possession
thereof, any state or political subdivision thereof, any agency or
instrumentality of any of the foregoing (other than an instrumentality, all of
the activities of which are subject to tax and, except for the Federal Home Loan
Mortgage Corporation, a majority of whose board of directors is not selected by
any such governmental entity) or any foreign government, international
organization or any agency or instrumentality of such foreign government or
organization, any rural electric or telephone cooperative, or any organization
(other than certain farmers' cooperatives) that is generally exempt from federal
income tax (unless such organization is subject to the tax on unrelated business
taxable income); and (ii) a "non-United States person" is any person other than
a "United States person". A "United States person" is a citizen or resident of
the United States, a corporation, partnership or other entity created or
organized in, or under the laws of, the United States or any political
subdivision thereof, or an estate whose income is subject to United States
federal income tax regardless of its source, or a trust if a court within the
United States is able to exercise primary supervision over the administration of
the trust and one or more United States persons have the authority to control
all substantial decisions of the trust, all within the meaning of Section
7701(a)(30) of the Code.)
3. The Transferee is aware (i) of the tax that would be imposed on
transfers of the Residual Certificate to "disqualified organizations" under the
Internal Revenue Code of 1986, as amended; (ii) that such tax would be imposed
on the transferor, or, if such transfer is through an agent (which person
includes a broker, nominee or middleman) for a "disqualified organization", on
the agent; (iii) that the person otherwise liable for the tax shall be relieved
of liability for the tax if the transferee furnishes to such person an affidavit
that the transferee is not a "disqualified organization" and, at the time of
transfer, such person does not have actual knowledge that the affidavit is
false; and (iv) that the Residual Certificate may be a "non-economic residual
interest" within the meaning of Treasury Regulation ss.1.860E-1(c) and that the
transferor of a "non-economic residual interest" will remain liable for any
taxes due with respect to the income on such residual interest, unless no
significant purpose of the transfer is to enable the transferor to impede the
assessment or collection of tax.
4. The Transferee is aware of the tax imposed on a "pass-through
entity" holding the Residual Certificate if at any time during the taxable year
of the pass-through entity a "disqualified organization" is the record holder of
an interest in such entity. (For this purpose, a "pass- through entity" includes
a regulated investment company, a real estate investment trust or common trust
fund, a partnership, trust or estate, and certain cooperatives.)
5. The Transferee is aware that the Certificate Registrar will not
register any transfer of the Residual Certificate by the Transferee unless the
Transferee's transferee, or such transferee's agent, delivers to the Certificate
Registrar, among other things, an affidavit and agreement in substantially the
same form as this affidavit and agreement. The Transferee expressly agrees that
it will not consummate any such transfer if it knows or believes that any
representation contained in such affidavit and agreement is false.
6. The Transferee consents to any additional restrictions or
arrangements that shall be deemed necessary upon advice of counsel to constitute
a reasonable arrangement to ensure that the Residual Certificate will only be
owned, directly or indirectly, by a Permitted Transferee.
7. The Transferee's taxpayer identification number is _____________.
8. The Transferee has reviewed the provisions of Section 5.02(d) of
the Pooling and Servicing Agreement, a description of which provisions is set
forth in the Residual Certificate (in particular, clause (ii) of Section 5.02(d)
which authorizes the Trustee to deliver payments on the Residual Certificate to
a person other than the Transferee, in the event that the Transferee holds such
Residual Certificate in violation of Section 5.02(d)), and the Transferee
expressly agrees to be bound by and to comply with such provisions.
9. No purpose of the Transferee relating to its purchase or any sale
of the Residual Certificate is or will be to impede the assessment or collection
of any tax.
10. The Transferee hereby represents to and for the benefit of the
transferor that the Transferee intends to pay any taxes associated with holding
the Residual Certificate as they become due, fully understanding that it may
incur tax liabilities in excess of any cash flows generated by the Residual
Certificate.
11. The Transferee will, in connection with any transfer that it
makes of the Residual Certificate, deliver to the Certificate Registrar a
representation letter substantially in the form of Exhibit C-2 to the Pooling
and Servicing Agreement in which it will represent and warrant, among other
things, that it is not transferring the Residual Certificate to impede the
assessment or collection of any tax and that it has at the time of such transfer
conducted a reasonable investigation of the financial condition of the proposed
transferee as contemplated by Treasury Regulations Section 1.860E-1(c)(4)(i) and
has satisfied the requirements of such provision.
<PAGE>
IN WITNESS WHEREOF, the Transferee has caused this instrument to be
executed on its behalf, pursuant to the authority of its Board of Directors, by
its [Title of Officer] and its corporate seal to be hereunto attached, attested
by its [Assistant] Secretary, this ___ day of __________, 199__.
[NAME OF TRANSFEREE]
By: ______________________________________
[Name of Officer]
[Title of Officer]
[Corporate Seal]
ATTEST:
______________________________
[Assistant] Secretary
Personally appeared before me the above-named [Name of Officer],
known or proved to me to be the same person who executed the foregoing
instrument and to be the [Title of Officer] of the Transferee, and acknowledged
to me that he/she executed the same as his/her free act and deed and the free
act and deed of the Transferee
Subscribed and sworn before me this ___ day of ______________,
199__.
______________________________________
NOTARY PUBLIC
COUNTY OF ___________
STATE OF _____________
My Commission expires the _________
day of _____________, 19__.
<PAGE>
EXHIBIT C-2
FORM OF TRANSFEROR CERTIFICATE
PURSUANT TO SECTION 5.02(D)(I)(D)
__________________, 19___
Norwest Bank Minnesota, National Association
Norwest Center, Sixth and Marquette
Minneapolis, Minnesota 55479-0113
Attention: Corporate Trust Services (CMBS)-MAC# N9303-121
Re: NationsLink Funding Corporation, Commercial Mortgage
Pass-Through Certificates, Series 1999-2, Class R-[I] [II],
evidencing a __% percentage interest in the Class to which
it belongs
------------------------------------------------------------
Dear Sirs:
This letter is delivered to you in connection with the transfer by
_____________ (the "Transferor") to ____________________ (the "Transferee") of
the captioned Class R-[I] [II] and [III] Certificate (the "Residual
Certificate"), pursuant to Section 5.02 of the Second Amended and Restated
Pooling and Servicing Agreement (the "Pooling and Servicing Agreement"), dated
as of November 1, 1999, among NationsLink Funding Corporation, as Depositor,
Bank of America, N.A., as Mortgage Loan Seller, ORIX Real Estate Capital
Markets, LLC, as Master Servicer and 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
1031 E. 10th Avenue S.E.
Minneapolis, Minnesota 55414
Attention: Mortgage Document Custody (CMBS) MAC# N9303-121
In connection with the administration of the Mortgage Files held by
or on behalf of you as Trustee under that certain Second Amended and Restated
Pooling and Servicing Agreement dated as of November 1, 1999 (the "Pooling and
Servicing Agreement"), by and among NationsLink Funding Corporation, as
Depositor, Bank of America, N.A., as Mortgage Loan Seller, ORIX Real Estate
Capital Markets, LLC, as Master Servicer and 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.
Property 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.
ORIX REAL ESTATE CAPITAL MARKETS, LLC.
By: _____________________________________________
Name: ______________________________________
Title: ______________________________________
<PAGE>
EXHIBIT E
FORM OF REO STATUS REPORT
<PAGE>
<TABLE>
REO STATUS REPORT
<CAPTION>
- ---------------------------------------------------------------------------------------------------
Prospectus Property Property City State Sq Ft or Paid Ending Total P&I Total
ID Name Type Units Thru Scheduled Advances to Expenses
Date Balance Date to Date
- ---------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
<CAPTION>
- ---------------------------------------------------------------------------------------------------
Prospectus Other Total Current Maturity LTM LTM LTM Cap Rate Valuation/
ID Advances Exposure Monthly P&I Date NOI NOI DSCR Assigned Appraisal
(Taxes & Date *** Date
Insurance)
- ---------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
</TABLE>
<PAGE>
<TABLE>
REO STATUS REPORT
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
Prospectus Property Property City Value Appraisal Loss Estimated Total Special REO Pending Comments
ID Name Type using / BPO or Using Recovery % Appraisal Servicing Acquisition Resolution
NOI & Internal 92% Reduction Transfer Date Date
Cap Value Appraisal Realized Date
Rate or BPO
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
</TABLE>
<PAGE>
EXHIBIT F
FORM OF ERISA REPRESENTATION LETTER
Norwest Bank Minnesota, National Association
Norwest Center, Sixth and Marquette
Minneapolis, Minnesota 55479-0113
Attention: Corporate Trust Services (CMBS) MAC# N9303-121
NationsLink Funding Corporation
100 North Tryon Street
Charlotte, North Carolina 28255
Attention:
Re: Transfer of NationsLink Funding Corporation,
Commercial Mortgage Pass-Through Certificates, Series 1999-2
------------------------------------------------------------
Ladies and Gentlemen:
The undersigned (the "Purchaser") proposes to purchase $____________
initial Certificate Balance of NationsLink Funding Corporation, Commercial
Mortgage Pass-Through Certificates, Series 1999-2, Class __ (the "Certificate")
issued pursuant to that Second Amended and Restated Pooling and Servicing
Agreement, dated as of November 1, 1999 (the "Pooling and Servicing Agreement"),
by and among NationsLink Funding Corporation, as depositor (the "Depositor"),
Bank of America, N.A., as mortgage loan seller, ORIX Real Estate Capital
Markets, LLC, as master servicer (the "Master Servicer") and 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
Norwest Center, Sixth and Marquette
Minneapolis, Minnesota 55479-0113
Attention: Corporate Trust Services (CMBS) MAC# N9303-121
Re: NationsLink Funding Corporation, Series 1999-2
In accordance with the Second Amended and Restated Pooling and
Servicing Agreement dated as of November 1, 1999 (the "Pooling and Servicing
Agreement"), among NationsLink Funding Corporation ("the "Depositor"), Bank of
America, N.A., as mortgage loan seller, ORIX Real Estate Capital Markets, LLC,
as Master Servicer and 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 1999-2 (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; and provided further, that the undersigned
may provide all or any part of the Information to its
regulators and auditors.
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 1999-2 ("the Certificates").
In accordance with the Second Amended and Restated Pooling and
Servicing Agreement dated, as of November 1, 1999 ( the "Pooling and Servicing
Agreement"), among NationsLink Funding Corporation ("the "Depositor"), Bank of
America, N.A., as mortgage loan seller, ORIX Real Estate Capital Markets, LLC as
Master Servicer and 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 1999-2 (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; and provided further, that the undersigned may provide
all or any part of the Information to its regulators and
auditors.
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>
EXHIBIT I
FORM OF INTERIM CUSTODIAL CERTIFICATION
[Date]
NationsLink Funding Corporation,
as Depositor
Bank of America Corporate Center
100 North Tryon Street
Charlotte, North Carolina 28255
Attention: David A. Gertner
Bank of America, N.A.,
as Mortgage Loan Seller
Bank of America Corporate Center
100 North Tryon Street
Charlotte, North Carolina 28255
Attention: David A. Gertner
ORIX Real Estate Capital Markets, LLC,
as Master Servicer and Special Servicer
1717 Main Street, 12th Floor
Dallas, Texas 75201
Attention: Paul G. Smyth
Re: Second Amended and Restated Pooling and Servicing Agreement
dated as of November 1, 1999 (the "Agreement") among
NationsLink Funding Corporation, as Depositor, Bank of
America, N.A., as Mortgage Loan Seller, ORIX Real Estate
Capital Markets, LLC, as Master Servicer and Special Servicer,
and Norwest Bank Minnesota, National Association, as Trustee
and REMIC Administrator for the Certificateholders of
Commercial Mortgage Pass Through Certificates, Series 1999-2
Ladies and Gentlemen:
Pursuant to Section 2.02 of the above referenced Agreement, the
Trustee hereby certifies as to each Mortgage Loan listed on the Mortgage Loan
Schedule (other than any Mortgage Loan paid in full), and except as specifically
identified in the exception report annexed hereto, (i) all documents specified
in clauses (i) through (iii), (ix) and, if the Mortgage Loan Schedule specifies
that the related Mortgagor has a leasehold interest in the related Mortgaged
Property, (xiii) of the definition of "Mortgage File" are in its possession or
the possession of a Custodian on its behalf, or the Mortgage Loan Seller has
otherwise satisfied the delivery requirements in respect of such documents in
accordance with Section 2.01(c), (ii) all documents received by it or any
Custodian in respect of such Mortgage Loan have been reviewed by it or by a
Custodian on its behalf and appear regular on their face and relate to such
Mortgage Loan, and (iii) based on such examination and only as to the foregoing
documents, the information set forth in the Mortgage Loan Schedule with respect
to the items specified in clauses (iv) and (vi)(B) of the definition of
"Mortgage Loan Schedule" is correct and the Mortgage Rate set forth in clause
(iii)(a) of the definition of "Mortgage Loan Schedule" matches the Mortgage Rate
in effect on the date of origination or of the most recent written amendment to
such Mortgage Rate which is contained in the Mortgage File.
Neither the Trustee or Custodian is under any duty or (i) to
determine whether any of the documents specified in clauses (iv) through (viii),
(x) through (xii) and (xiv) through (xx) of the definition of "Mortgage File"
exist or are required to be delivered by the Mortgage Loan Seller in respect of
any Mortgage Loan or (ii) to inspect, review or examine any of the documents,
instruments, certificates or other papers relating to the Mortgage Loans
delivered to it to determine that the same are genuine, enforceable, in
recordable form or appropriate for the represented purpose, or that they are
other than what they purport to be on their face.
Any terms used herein and not defined shall have the respective
meaning assigned to them in the related Agreement.
Respectfully,
[Name]
[Title]
cc: Robert W. Long, Esq., Assistant General Counsel, Bank of America Corporation
<PAGE>
EXHIBIT J
FORM OF FINAL CUSTODIAL CERTIFICATION
[Date]
NationsLink Funding Corporation,
as Depositor
Bank of America Corporate Center
100 North Tryon Street
Charlotte, North Carolina 28255
Attention: David A. Gertner
Bank of America, N.A.,
as Mortgage Loan Seller
Bank of America Corporate Center
100 North Tryon Street
Charlotte, North Carolina 28255
Attention: David A. Gertner
ORIX Real Estate Capital Markets, LLC,
as Master Servicer and Special Servicer
1717 Main Street, 12th Floor
Dallas, Texas 75201
Attention: Paul G. Smyth
Re: Second Amended and Restated Pooling and Servicing Agreement
dated as of November 1, 1999 (the "Agreement") among
NationsLink Funding Corporation, as Depositor, Bank of
America, N.A., as Mortgage Loan Seller, ORIX Real Estate
Capital Markets, LLC, as Master Servicer and Special Servicer,
and Norwest Bank Minnesota, National Association, as Trustee
and REMIC Administrator for the Certificateholders of
Commercial Mortgage Pass Through Certificates, Series 1999-2
Ladies and Gentlemen:
Pursuant to Section 2.02 of the above referenced Agreement, the
Trustee hereby certifies as to each Mortgage Loan listed on the Mortgage Loan
Schedule (other than any Mortgage Loan paid in full), and except as specifically
identified in the exception report annexed hereto, (i) all documents specified
in clauses (i), (ii), (ix) and, if the Mortgage Loan Schedule specifies that the
related Mortgagor has a leasehold interest in the related Mortgaged Property,
(xiii) of the definition of "Mortgage File" are in its possession or the
possession of a Custodian on its behalf, or the Mortgage Loan Seller has
otherwise satisfied the delivery requirements in respect of such documents in
accordance with Section 2.01(c), (ii) it or a Custodian on its behalf has
received either the original or copy of each of the assignments specified in
clauses (iii) and (v) of the definition of "Mortgage File" that were delivered
by the Mortgage Loan Seller with evidence of recording thereon, (iii) all
documents received by it or any Custodian in respect of such Mortgage Loan have
been reviewed by it or by such Custodian on its behalf and appear regular on
their face and relate to such Mortgage Loan, and (iv) based on the examinations
referred to in Section 2.02 (b) and Section 2.02(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 (iv) and (vi)(B) of the definition of
"Mortgage Loan Schedule" is correct, and the Mortgage Rate set forth in clause
(iii)(a) of the definition of "Mortgage Loan Schedule" matches the Mortgage Rate
in effect on the date of origination or of the most recent written amendment to
such Mortgage Rate which is contained in the Mortgage File.
Neither the Trustee or Custodian is under any duty or (i) to
determine whether any of the documents specified in clauses (iv) through (viii),
(x) through (xii) and (xiv) through (xx) of the definition of "Mortgage File"
exist or are required to be delivered by the Mortgage Loan Seller in respect of
any Mortgage Loan or (ii) to inspect, review or examine any of the documents,
instruments, certificates or other papers relating to the Mortgage Loans
delivered to it to determine that the same are genuine, enforceable, in
recordable form or appropriate for the represented purpose, or that they are
other than what they purport to be on their face.
Any terms used herein and not defined shall have the respective
meaning assigned to them in the related Agreement.
Respectfully,
[Name]
[Title]
cc: Robert W. Long, Esq., Assistant General Counsel, Bank of America Corporation
<PAGE>
<TABLE>
EXHIBIT K
FORM OF OPERATING STATEMENT ANALYSIS REPORT
AS OF MM/DD/YY
PROPERTY OVERVIEW:
Prospectus Number
Sched Balance/Paid to Date
Property Name
Property Type
Property Address
City, State
Net Rentable Square Feet
Year Built/Renovated
<CAPTION>
199X
Year of Operations Underwriting 199X 199X 199X YTD/Trailing*
Occupancy Rate ------------ ---- ---- ---- -------------
<S> <C> <C> <C> <C> <C>
Average Rental Rate
** Servicer will not be expected to "Normalize" these YTD numbers
INCOME:
<CAPTION>
No. of Months # of months
Period Ended Underwriting 199X 199X 199X 199X 199X-Base 199X-199X
Basis Normalized Normalized Normalized YTD/Trailing Variance Variance
Statement Classification ----- ---------- ---------- ---------- ------------ -------- --------
<S> <C> <C> <C> <C> <C> <C> <C>
Rental Income-Category 1
Rental Income - Category 2
Rental Income - Category 3
Pass Through/Escalations
Other Income
EFFECTIVE GROSS INCOME:
OPERATING EXPENSES:
Real Estate Taxes
Property Insurance
Utilities
General and Administration
Repairs and Maintenance
Management Fees
Payroll and Benefits
Advertising and Marketing
Professional Fees
Other Expenses
Ground Rent
TOTAL OPERATING EXPENSES
OPERATING EXPENSE RATIO
NET OPERATING INCOME
Leasing Commissions
Tenant Improvements
Replacement Reserves
Total Capital Items
NOI AFTER CAPITAL ITEMS
Debt Service (per servicer)
Cash Flow after Debt Service
DSCR (NOI/Debt Service)
DSCR (after reserves/cap exp)
Source of Financial Data:
Income Comments:
Expense Comments:
Capital Items Comments:
</TABLE>
<PAGE>
<TABLE>
EXHIBIT L
SERVICER WATCH LIST
<CAPTION>
- ----------------------------------------------------------------------------------------------------
PROSPECTUS PROPERTY PROPERTY CITY STATE ENDING PAID MATURITY LTM DSCR COMMENT/REASON ON
ID NAME TYPE SCHEDULE THRU DATE * WATCH LIST
BALANCE DATE
- ----------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
</TABLE>
* LTM = Last 12 months either trailing or last annual
<PAGE>
<TABLE>
EXHIBIT M
OPERATING STATEMENT ANALYSIS WORKSHEET
<CAPTION>
AS OF MM/DD/YY
<S> <C> <C> <C> <C>
PROPERTY OVERVIEW:
Prospectus Number
Sched Balance/Paid to Date
Property Name
Property Type
Property Address
City, State
Net Rentable Square Feet
Year Built/Renovated
Year of Operations Borrower Adjustment Normalized
Occupancy Rate
Average Rental Rate
INCOME:
No. of Months Annualized
Period Ended Borrower Adjustment Normalized
Statement Classification
Rental Income - Category 1
Rental Income - Category 2
Rental Income - Category 3
Pass Through/Escalations
Other Income
Effective Gross Income
OPERATING EXPENSES:
Real Estate Taxes
Property insurance
Utilities
General and Administration
Repairs and Maintenance
Management Fees
Payroll and Benefits
Advertising and Marketing
Professional Fees
Other Expenses
Ground Rent
Total Operating Expenses
Operating Expense Ratio
Net Operating Income
Leasing Commissions
Tenant Improvements
Replacement Reserves
Other Capital Expense
Total Capital Items
NOI after Capital Items
Debt Service (per servicer)
Cash Flow after Debt Service
DSCR (NOI/Debt Service)
DSCR (after reserves\cap exp)
Source of Financial Data :
Income Comments :
Expense Comments :
Capital Items Comments :
</TABLE>
<PAGE>
EXHIBIT N
ENVIRONMENTAL INSURANCE POLICY
<PAGE>
SECURITIZATION COLLATERAL PROTECTION AND [Logo]
ENVIRONMENTAL LIABILITY INSURANCE ZURICH
DECLARATIONS - CLAIMS MADE AND REPORTED COVERAGE
STEADFAST INSURANCE COMPANY
Dover, Delaware
Administrative Offices - 1400 American Lane
Schaumburg, Illinois 60196-1056
POLICY NUMBER: PLC 3561130-00 RENEWAL OF: New Business
ITEM 1. NAMED INSURED(S): BANK OF AMERICA, N.A., Mortgage Loan Seller, ORIX
REAL ESTATE CAPITAL MARKETS, LLC, Master Servicer
and Special Servicer, and NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION, Trustee and REMIC
Administrator
ADDRESS: 1717 Main Street, Suite 1400
Dallas, Texas 75201
ITEM 2. "POLICY PERIOD": Effective Date: August 1, 1999
12:01 A.M. Local time at the address shown in Item 1.
"Policy period" means the period for which coverage is provided by the
Company to the "insured" under the terms and conditions of this policy.
For each "covered location" the "policy period shall begin on the
effective date of the policy set out in the Declarations and end: (1)
for Coverage A - the earlier of one (1) year after the maturity date, as
extended, of a loan evidenced by a "mortgage agreement" or the date on
which a loan evidenced by a "mortgage agreement" is sold or transferred
such that such loan is no longer part of the pool of loans held by the
"insured" pursuant to the "PSA"; and (2) for Coverages B, C and D the
earlier of the date, May 20, 2031 or two (2) years from the date on
which all the certificates are fully paid (or provisions are made for
payment) as defined in the "PSA".
ITEM 3. LIMITS OF LIABILITY:
Coverage A: $ 14,000,000 "Outstanding loan balance" and
"Extra expenses"
Coverages B, C and D: $ 13,000,000 Each Claim
$130,000,000 Total for all Claims under
Coverages A, B, C, and/or D
Deductible: $ 0 Each Claim
Copyright(C)1999 by Zurich Insurance Company Page 1 of 2
All rights reserved. No part of this document covered by the copyrights hereon
may be reproduced or copied in any form by any means - graphic, electronic, or
mechanical, including photocopies, taping or information storage and retrieval
systems - without written permission of the Zurich Insurance Company.
<PAGE>
ITEM 4. COVERED LOCATION(S):
See Covered Location(s) Endorsement to the policy and includes "covered
locations" subsequently owned by the "insured" or its assignees or
designees, whether by virtue of the foreclosure of the "insured's" lien,
by way of deed in lieu of foreclosure or such other transfer of title or
interest calculated to allow the "insured" the opportunity to recover
upon debt evidenced by a "mortgage agreement" and secured, in whole or
in part, by such "covered location".
ITEM 5. AGREEMENT: NATIONSLINK FUNDING CORPORATION, Depositor, BANK OF AMERICA,
N.A., Mortgage Loan Seller, ORIX REAL ESTATE CAPITAL MARKETS, LLC.
Master Servicer and Special Servicer, and NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION, Trustee and REMIC Administrator, Series 1999-2 and
dated August 1, 1999.
ITEM 6. ENDORSEMENTS: Estimated Cleanup Costs Protocol Endorsement
Covered Location(s) Endorsement
Increased Policy Limits Endorsement
Broad Form Nuclear Energy Liability Exclusion Endorsement
ITEM 7. POLICY PREMIUM: $1,750.00 per loan number as indicated en the Covered
Location(s) Endorsement subject to $2,250.00 for Loan
number 3055209 as indicated on the Covered Location(s)
Endorsement and the Increased Policy Limits Endorsement
ITEM 8. ERP PREMIUM: 100% of policy premium per "covered location"
ITEM 9. BROKER: ENVIRONMENTAL WARRANTY
970 FARMINGTON AVENUE
WEST HARTFORD, CT 06107
Signed by: /s/ M. Dillon 8/13/99
-------------------------- -------------------
Authorized Representative Date
Copyright(C)1999 by Zurich Insurance Company Page 2 of 2
All rights reserved. No part of this document covered by the copyrights hereon
may be reproduced or copied in any form by any means - graphic, electronic, or
mechanical, including photocopies, taping or information storage and retrieval
systems - without written permission of the Zurich Insurance Company.
<PAGE>
SECURITIZATION COLLATERAL PROTECTION [Logo]
AND ENVIRONMENTAL LIABILITY INSURANCE ZURICH
CLAIMS MADE AND REPORTED COVERAGE
This is a claim(s) made and reported policy. Notice of a potential "claim" is
not a "claim" and does not trigger coverage under the policy. This policy has
certain provisions and requirements unique to it and may be different from other
policies the "insured" may have purchased. Claim(s) must first be made by or
against the "insured" during the "policy period", and "claim(s) must be
reported, in writing, to the Company during the "policy period", the automatic
extended reporting period or an extended reporting period, if applicable. The
payment of "claim(s)", "loss(es)", "outstanding loan balance(s)", "extra
expenses", "cleanup costs", "estimated cleanup costs" and "claim expense(s)",
including defense costs, reduces the limits of insurance. If the policy's Limit
of Liability is exhausted, the Company shall not be liable for "claim expenses"
or for the amount of any "claim", "loss", "cleanup costs", "estimated cleanup
costs", "outstanding loan balance", "extra expenses", judgment or settlement.
Various provisions in this policy restrict coverage. Read the entire policy
carefully to determine rights, duties and what is and is not covered. Words and
phrases that appear in quotation marks have special meanings. Refer to Section
II - DEFINITIONS.
In consideration of the payment of premium, the undertaking of the "insured" to
pay the Deductible, in reliance upon the statements in the Application for this
policy made a part hereof, subject to the Limits of Liability of this policy as
set forth in the Declarations, exclusions, conditions and other terms of this
policy, the Company agrees it the "named insured" as follows:
I. INSURING AGREEMENTS
COVERAGE A: LENDER COLLATERAL PROTECTION
The Company agrees to pay to the "insured" the lesser of the following
sums as a result of a "pollution event" on, at or under a "covered
location" discovered by the "insured" during the "policy period":
1. the "outstanding loan balance" and "extra expenses"; or
2. "estimated cleanup costs";
provided the "borrower" for the "covered location" is in "default" and the
"claim" is reported to the Company during the "policy period". However, if
the "estimated cleanup costs" are either equal to or greater than fifty
percent (50%) of the "outstanding loan balance", the "insured" may select
either the "estimated cleanup costs" or the "outstanding loan balance" and
"extra expenses".
COVERAGE B: FIRST PARTY CLEANUP
The Company agrees to pay on behalf of an "insured" any "cleanup cost(s)"
required by "governmental authority" as a result of a "pollution event"
on, at or under a "covered location" discovered by the "insured" during
the "policy period", provided that the "claim" is reported to the Company
during the "policy period" or any applicable extended reporting period.
The Company shall not, however, pay under this Coverage B for "cleanup
Copyright(C)1999 by Zurich Insurance Company Page 1 of 17
All rights reserved. No part of this document covered by the copyrights hereon
may be reproduced or copied in any form by any means - graphic, electronic, or
mechanical, including photocopies, taping or information storage and retrieval
systems - without written permission of the Zurich Insurance Company.
<PAGE>
costs" arising out of a "pollution event" which was the subject of a
payment for "estimated cleanup costs" or the "outstanding loan balance"
and "extra expenses" under Coverage A.
COVERAGE C: THIRD PARTY LIABILITY
The Company agrees to pay on behalf of an "insured" any "loss" caused by a
"pollution event" on, at, under or coming from a "covered location" that
an "insured" is legally obligated to pay as a result of "claim(s)" first
made against the "insured" during the "policy period" provided that the
"claim" is reported to the Company during the "policy period" or any
applicable extended reporting period.
COVERAGE D: THIRD PARTY NAMED PERILS CLEANUP FOR ASBESTOS OR LEAD INCIDENT
The Company agrees to pay on behalf of an "insured" any "cleanup costs"
caused by an "asbestos or lead incident" at a "covered location" during
the "policy period" that the "insured" is legally obligated to pay
pursuant to "governmental authority" as a result of a "claim" first made
against the "insured" during the "policy period" provided that the "claim"
is reported to the Company during the "policy period" or any applicable
extended reporting period.
Notwithstanding anything to the contrary contained in this policy, this
Coverage D shall apply as excess insurance over any other applicable,
valid and collectible insurance maintained by the "insured".
COVERAGE C AND D DEFENSE
The Company shall have the right and duty to assume the adjustment,
defense and settlement of any "claim" brought by or on behalf of any
federal, state or local regulatory agency, or by or on behalf of a third
party seeking payment for "cleanup costs" and/or "loss" to which this
insurance applies under Coverages C and D. "Claim expense" paid under this
policy reduces the applicable Limit of Liability set out in the
Declarations as described in Section VI., Limit of Liability and
Deductible. The Company's duty to adjust, defend and settle all "claim(s)"
to which this insurance applies, pending and future, ends when the
applicable Limit of Liability has been tendered into court or exhausted by
payment "claim expense", "cleanup costs" or "loss".
II. DEFINITIONS
A. "Asbestos or lead incident" means the discharge, dispersal or escape
of asbestos, asbestos containing material, lead, or lead containing
material, from the structure within which it was contained at a
"covered location", caused by or arising out of:
1. hostile fire, lightning or explosion;
2. collision, overturning and derailment of a vehicle, including
but not limited to an automobile, truck or train;
3. windstorm;
4. automatic sprinkler leakage;
5. flood and earthquake.
B. "Bodily injury" means physical injury, sickness, or disease
sustained by any person including death resulting therefrom and
mental anguish or emotional distress when accompanied by physical
injury.
C. "Borrower" means a person or entity that is financially obligated to
the "insured" pursuant to a "mortgage agreement" pertaining to a
"covered location".
Copyright(C)1999 by Zurich Insurance Company Page 2 of 17
All rights reserved. No part of this document covered by the copyrights hereon
may be reproduced or copied in any form by any means - graphic, electronic, or
mechanical, including photocopies, taping or information storage and retrieval
systems - without written permission of the Zurich Insurance Company.
<PAGE>
D. "Claim(s)" means:
1. Under Coverage A, notice by the "insured" to the Company, in
writing, or if oral followed up in writing, as soon as
reasonably possible following the discovery of a "pollution
event" by the "insured" and "default" by the "borrower" and
which seeks the payment of estimated cleanup costs" or the
payment of the "outstanding loan balance"; or
2. Under Coverage B, notice by the "insured" to the Company, in
writing, or if oral, followed up in writing, as soon as
reasonably possible following the discovery of a "pollution
event" by the "insured" and which seeks the payment of
"cleanup cost" required by "governmental authority"; or
3. Under Coverage C, any demand received by the "insured" which
alleges liability or responsibility on the part of the
"insured" for "loss(es)"; or
4. Under Coverage D, any demand received by the "insured" which
alleges liability or responsibility on the part of the
"insured" pursuant to "governmental authority" for "cleanup
costs" because of an "asbestos or lead incident".
E. "Claim expense(s) means:
1. fees and costs charged by an attorney designated by the:
a. Company; or
b. "insured", with the prior written consent of the
Company; and
2. all other fees, costs and expenses incurred by the Company, or
incurred by the "insured" with the consent of the Company,
which result from the investigation, adjustment, defense,
settlement and appeal of a "claim".
However, "claim expense(s)" does not include the salaries or
expenses of regular employees or officials of the Company or the
"insured" or the expenses of adjusters of the Company. The "insured"
shall be entitled to $250 per day but not more than $5,000 in total
as allowable expenses for the compensation of its officers or
employees for personally attending any legal proceeding or meeting
at the request of the Company. Notwithstanding anything to the
contrary contained in this policy, these allowable expenses for the
compensation of officers and employees shall not reduce the
applicable Deductible or Limit of Liability set out in the
Declarations.
F. "Cleanup" means the investigation, treatment, monitoring, removal,
remediation, neutralization or immobilization of contaminated soil,
surface water, groundwater, or other contamination.
G. "Cleanup costs" means:
1. the necessary expenses incurred in the investigation,
treatment, monitoring, removal, remediation, neutralization or
immobilization of contaminated soil, surface water,
groundwater, or other contamination; and
2. for a "claim" under Coverage B only, the legal fees and costs
to represent the "insured" before any federal, state or local
regulatory agency provided such fees and costs are reasonable
and necessary and incurred with the written consent of the
Company.
Copyright(C)1999 by Zurich Insurance Company Page 3 of 17
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<PAGE>
However, any costs, charges or expenses incurred by the "insured" to
confirm the existence of a "pollution event" shall not be considered
"cleanup costs".
H. "Covered location(s)" means that certain real property which is
collateral for the "mortgage agreement between the "named insured"
and the "borrower" and includes "covered location(s)" subsequently
owned by the "insured" or its assignees or designees, whether by
virtue of the foreclosure of the "insured's" lien, by way of deed in
lieu of foreclosure or such other transfer of title or' interest
calculated to allow the "insured" the opportunity to recover upon
debt evidenced by a "mortgage agreement" and secured, in whole or in
part, by such "covered location". "Covered location(s)" provided
coverage under this policy shall be shown on the "covered
location(s)" endorsement to this policy.
I. "Default" means the existence and declaration by the "insured" of a
"default" or event of "default" as those terms are defined by and in
accordance with the provisions of the "mortgage agreement" between
the "insured" and the "borrower".
J. "Emergency action" means the reasonable and necessary costs incurred
to prevent or mitigate an imminent and substantial endangerment to
public health or the environment.
K. "Estimated cleanup costs" means the necessary estimated expenses in
connection with the investigation, treatment, monitoring, removal,
remediation, neutralization or immobilization of contaminated soil,
surface water, groundwater, or other contamination as determined by
the Estimated Cleanup Cost Protocol Endorsement, however, any costs,
charges or expenses incurred by the "insured" to confirm the
existence of a "pollution event" shall not be considered "estimated
cleanup costs".
L. "Extra expenses" means the sum of the following: (1) the lesser of
the actual amount incurred or six (6) months of interest accrued and
unpaid with respect to a "mortgage agreement"; (2) the lesser of the
actual amount incurred or six (6) months of servicer interest on
"mortgage agreement" payment advances; and (3) the lesser of the
actual amount incurred or ten thousand dollars ($10,000.00) for
legal fees, as each is defined in the "mortgage agreement" or "PSA",
which shall begin to accrue as of the date of the "insured's"
declaration of "default".
M. "Governmental authority" means applicable federal, state, or local
environmental or health and safety statutes and regulations, orders
or ordinances.
N. "Insured" means:
1. the "named insured";
2. its subsidiaries, affiliates and divisions, and all current
and former executives, officers, directors, employees,
contract or leased employees, agents and servants thereof when
acting within the scope of their offices or employment or
written agreements therewith;
3. all current and former executives, officers, directors,
employees, contract or leased employees, agents and servants
of the "named insured" when acting within the scope of their
offices or employment or written agreements with the "named
insured"; and
4. any other person or entity added to the policy by endorsement
as an "insured";
together with the heirs, executors, administrators, assigns and
legal representatives of any of the above in the event of death,
incapacity, insolvency or bankruptcy.
Copyright(C)1999 by Zurich Insurance Company Page 4 of 17
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<PAGE>
O. "Loss(es)" means:
1. compensatory damages and legal obligations arising from:
a. "bodily injury"; or
b. "property damage"; and
2. "claim expense".
P. "Mortgage agreement" means any and all such documents, certificates
and instruments, including but not limited to a note, a mortgage or
deed of trust, which evidence financial and other obligations of the
"borrower" to the "insured" and as a result of which the "insured"
obtains from the "borrower" a lien or other security interest upon a
"covered location" as renewed, modified or extended.
Q. "Mediation" means any non-binding intervention by a neutral third
party.
R. "Named insured" means:
1. the person(s) or entity(ies) designated in the Declarations
(and their successor lienholders, servicers or trustees); and
2. any other entity designated by an Endorsement to this policy.
S. "Natural resource damages" means the sum of:
1. reasonable direct costs, including costs of assessment (and
related interest on any unpaid assessment), associated with
action necessary to restore (including replacement and
rehabilitation) natural resources to their baseline condition
prior to the "pollution event"; and
2. the "use value" of injury to or destruction of natural
resources, including the land, surface water, groundwater,
subsurface strata, air, fish, wildlife, or biota, between the
time of a "pollution event" and restoration of the natural
resources injured by the "pollution event".
"Use value" means the value of the natural resources to the public
attributable to the direct use of the services provided by the
natural resources.
T. "Outstanding loan balance" means the unpaid principal as defined in
the "mortgage agreement". However, any fees, costs or expenses
incurred to confirm the existence of a "pollution event" at the
related "covered location" shall be specifically excluded from the
"outstanding loan balance". For the purpose of determining the
"claim" payment under Coverage A of this policy the "outstanding
loan balance" shall be the amount of unpaid principal as of the date
of the declaration of "default" by the "insured". However, a "claim"
payment of the "outstanding loan balance" includes "extra expenses".
U. "Policy period" means the period for which coverage is provided by
the Company to the "insured" under the terms and conditions of this
policy. For each "covered location" the "policy period" shall begin
on the effective date of the policy set out in the Declarations and
end: (I) for Coverage A - the earlier of one (1) year after the
maturity date, as extended, of a loan evidenced by a "mortgage
agreement" or the date on which a loan evidenced by a "mortgage
agreement" is sold or transferred such that such loan is no longer
part of the pool of loans held by the "insured" pursuant to the
"PSA"; and (2) for Coverages B, C
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<PAGE>
and D - the earlier of the date, May 20, 2031 or two (2) years from
the date on which all the certificates are fully paid (or provisions
are made for payment) as defined in the "PSA".
V. "Pollution event" means the discharge, dispersal, release, or escape
of any solid, liquid, gaseous or thermal irritant, contaminant,
pollutant, or hazardous substance, including smoke, vapor, soot,
fumes, acids, alkalis, chemicals and waste on, at, tinder or coming
from the soil, surface waters, groundwaters, stream sediment, air
and similar or other environmental media of or from the "covered
location", that requires the expenditure of "cleanup costs" to
achieve compliance with "governmental authority" and/or that results
in liability of the "insured" for "loss" and/or "cleanup costs"
under Coverage C. This policy provides coverage for any known
"pollution events" disclosed to the Company prior to the effective
date for coverage under this policy and unknown "pollution events".
W. "Pooling and Servicing Agreement" also referred to as "PSA" means
the agreement referred to in the Declarations to this policy.
X. "Property damage" means:
1. physical injury to or destruction of tangible property,
including the resulting loss of use thereof;
2. "cleanup costs";
3. loss of use of tangible property that is not physically
injured or destroyed; and
4. "natural resource damages".
III. TERRITORY
The insurance afforded by this policy applies worldwide, provided that the
"claim" is made within the United States of America (including its
territories and possessions), Puerto Rico or Canada.
IV. EXCLUSIONS
This insurance does not apply to "claim(s)" based upon or arising out of:
A. any "pollution event" existing prior to the effective date of the
policy which is known prior to the effective date of the policy to
any "named insured's" principal, partner, director, officer, or
employee with responsibility for the "mortgage agreement",
environmental affairs, legal affairs or risk management unless prior
to the effective date of coverage for a "covered location", such
"pollution event" was disclosed to the Company;
B. any dishonest, fraudulent, intentional or malicious act or those of
a knowingly wrongful nature, or the intentional, willful or
deliberate non-compliance with any statute, regulation, ordinance,
administrative complaint, notice of violation, notice letter,
executive order, or instruction of any governmental agency or body
by or at the direction of the "insured", except that this exclusion
will not apply to an "insured" who did not commit, participate in,
or have knowledge of any of the acts described;
C. any "claim" made by any "insured" against any other "insured";
D. a "claim" made against an "insured" by any entity or individual;
1. that controls, owns, operates or manages an "insured"; or
Copyright(C)1999 by Zurich Insurance Company Page 6 of 17
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<PAGE>
2. which an "insured" controls. owns, operates or manages;
E. any obligation of the "insured" which could have been brought in
whole or in part under worker's compensation, disability benefits,
unemployment compensation, employer's liability or any similar law;
F. injury to any employee, contract employee or leased personnel of an
"insured" if such injury occurs during and in the course of said
employment, or to the spouse, child, parent, brother or sister of
any employee, contract employee or leased personnel as a consequence
of said employment, or to any obligation of an "insured" for
indemnity or contribution to another because of "loss(es)" arising
out of such injury in the course of employment;
G. the liability of others assumed by an "insured" under any contract
or agreement, however this exclusion does not apply to "loss" or
"cleanup costs" that the "insured" would have by the operation of
law in the absence of the contract or agreement;
H. any "pollution event" which first commences after a "covered
location" is sold, given away or abandoned by the "borrower"
subsequent to the time the "insured" has discharged or released in
full a security interest or lien upon that "covered location" that
was created by a "mortgage agreement"; except that this exclusion
shall not apply to "pollution events" on, at, under or coming from
"covered location(s)" subsequently owned by the "insured" or its
assignees or designees, whether by virtue of the foreclosure of the
"insured's" lien, by way of deed in lieu of foreclosure or such
other transfer of title or interest calculated to allow the
"insured" the opportunity to recover upon debt evidenced by a
"mortgage agreement" and secured, in whole or in part, by such
"covered location";
I. any naturally occurring substance on, within or under a "covered
location", in its unaltered form, or altered solely through
naturally occurring processes or phenomena;
J. any products, including but not limited to asbestos containing
material and lead based paint which are part of the structure of the
"covered location(s)", however, this exclusion shall not apply to
coverage provided under Coverage D;
K. heating, ventilating, air conditioning or cooling, and
humidification ("HVAC") systems, which are part of the structure of
the "covered location(s)";
L. the normal maintenance or operation. or failure to properly maintain
or operate HVAC systems;
M. any consequence, whether direct or indirect, of war, invasion, act
of foreign enemy, hostilities (whether war be declared or not),
civil war, rebellion, revolution, insurrection or military or
usurped power, strike, riot or civil commotion;
N. goods or products designed, manufactured, sold, handled,
distributed, or supplied by the "insured" or by others trading under
its name or under license from an "insured" once the goods or
products are removed away from the "covered location".
V. EXTENDED REPORTING PERIODS FOR COVERAGE B, C AND D ONLY.
A. The "named insured" shall be entitled to an automatic extended
reporting period without additional charge upon termination of
coverage as defined in this section. This period starts at the end
of the "policy period" and lasts for thirty (30) days.
Copyright(C)1999 by Zurich Insurance Company Page 7 of 17
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<PAGE>
B. In addition to the automatic extended reporting period the "named
insured" shall be entitled to purchase an extended reporting period
for up to three years in duration, except in the event of nonpayment
of premium. The charge for an extended reporting period of up to
three years in duration shall not be more than one hundred percent
(100%) of the premium per "policy period". The extended reporting
period for up to three years in duration starts when the automatic
extended reporting period, set forth in the above paragraph, ends.
C. Upon payment of the additional premium die Company shall issue an
endorsement providing for an extended reporting period for up to
three years in duration provided that the "named insured":
1. makes a written request for such endorsement which the Company
receives within thirty (30) days after termination of coverage
as defined herein; and
2. pays the additional premium when due. If such additional
premium is paid when due, the extended reporting period may
not be canceled by the Company provided that all other terms
and conditions of the policy are met.
D. The "claim" first reported within the automatic extended reporting
period and the extended reporting period for up to three years in
duration, if purchased in accordance with this section, shall be
deemed to have been made on the last day of the "policy period", and
coverage shall apply under this policy provided that the "pollution
event" or the "asbestos or lead incident" occurred during the
"policy period" and the "claim" is otherwise covered under the terms
and conditions of this policy.
E. If the automatic extended reporting period or an extended reporting
period endorsement is in effect, the Company will provide the Each
Claim Limit of Liability and that which is remaining in the Total
for all Claims Limit of Liability shown in the Declaration to this
policy, but only for "Claim(s)" first reported to the Company
pursuant to the policy during the automatic extended reporting
period or extended reporting period endorsement. The purchase of an
extended reporting period does not reinstate or increase the Limit
of Liability shown in the Declarations as applicable to the Total
for all Claims.
F. Notwithstanding, CONDITIONS (Section VIII.) Paragraph I., Other
Insurance., the insurance afforded for "claim(s)" first reported
during the automatic extended reporting period and the extended
reporting period coverage is excess over any other valid and
collectible insurance available under policies in force during the
automatic extended reporting period or the extended reporting period
endorsement.
G. For the purposes of the automatic extended reporting period and the
extended reporting period for tip to three years in duration,
termination of coverage shall mean when the "policy period" ends for
Coverages B, C and D only.
VI. LIMIT OF LIABILITY AND DEDUCTIBLE
A. EACH CLAIM LIMIT OF LIABILITY
The Company's liability for "estimated cleanup costs", and any new
and/or additional "cleanup costs" arising from an "estimated cleanup
costs" "claim" under Coverage A or "outstanding loan balance" and
"extra expenses" under Coverage A shall not exceed the "outstanding
loan balance" and "extra expenses" for the "covered location". The
Company's liability for "cleanup costs" under Coverage B shall not
exceed the Each Claim Limit of Liability set out in the Declarations
to the policy. The Company's liability for "loss" including "claim
expenses" tinder Coverage C shall not exceed the Each Claim Limit of
Liability set out in the Declarations to the policy. The Company's
liability for "cleanup costs"
Copyright(C)1999 by Zurich Insurance Company Page 8 of 17
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<PAGE>
including "claim expenses" under Coverage D shall not exceed the
Each Claim Limit of Liability set out in the Declarations to the
policy.
B. TOTAL LIMIT OF LIABILITY
Subject to paragraph A, above, the Company's total liability for all
"loss(es)" including "claim expenses" "cleanup costs", "estimated
cleanup costs", "outstanding loan balances", "extra expenses", and
"claim(s)" shall not exceed the Total for all Claims Limit of
Liability set out in the Declarations. The Company shall not be
obligated to pay any "loss(es)" including "claim expenses", "cleanup
costs", "estimated cleanup costs", "outstanding loan balances",
"extra expenses" and "claim(s)", or undertake or continue the
defense of any "claim", whether pending or future, after the Total
for all Claims Limit of Liability has been tendered into court or
exhausted by payments of "loss(es)" including "claim expenses",
"cleanup costs", "estimated cleanup costs", "outstanding loan
balances", "extra expenses" or "claim(s)".
C. DEDUCTIBLE
The Deductible amount set out in the Declarations is the obligation
of the "insured" and applies to each "claim". The Company may
advance payment for "loss(es)" including "claim expenses", "cleanup
costs", "estimated cleanup costs", "outstanding loan balances", and
"extra expenses" that fall within the Deductible. The "insured"
shall promptly reimburse the Company for advancing any element of
"loss", "cleanup costs", "estimated cleanup costs", "outstanding
loan balances", and "extra expenses" paid by the Company within an
"insured's" Deductible.
If the Company and the "insured" agree to use "mediation" to resolve
a "claim" provided coverage under INSURING AGREEMENT (Section 1.)
Coverages C and D, and a "claim" is resolved thereby, the Deductible
shall be reduced by fifty percent (50%) for that "claim" only,
subject to a maximum reduction of S25,000.
D. MULTIPLE INSUREDS, CLAIM(S), LOSS(ES), CLAIMANTS, POLLUTION EVENTS
AND POLICY PERIODS
1. MULTIPLE INSUREDS OR CLAIMANTS
The inclusion of more than one "insured" in the making of a
single "claim" or the bringing of a single suit regarding the
same "pollution event" shall not increase the Limit of
Liability stated in the Declarations, neither shall the making
of "claim(s)" or the bringing of suits by more than one person
or organization increase the Limit of Liability stated in the
Declarations.
2. CLEANUP COSTS ARISING FROM ESTIMATED CLEANUP COSTS
If under Coverage A, the "insured" and the Company do not
consent to the "estimated cleanup costs" payment as a final
determination of the "claim" under the policy and the
"insured" elects to have a "cleanup" performed at the "covered
location" the following shall apply.
If new and/or additional "cleanup costs" related to the
"pollution event" which was the subject of a "claim" payment
of "estimated cleanup costs" are discovered or occur because
of the inaccuracy of the "estimated cleanup costs"
determination and the "cleanup costs" were not part of the
prior "estimated cleanup costs" payment, then the Company may
have obligations for payment of the new and/or additional
"cleanup costs" covered under the terms and conditions of the
policy. The "insured" must notify the Company, in writing, as
soon as possible following the discovery of such new and/or
additional "cleanup costs". This request for new and/or
additional
Copyright(C)1999 by Zurich Insurance Company Page 9 of 17
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<PAGE>
"cleanup costs" shall be considered part of the same "claim"
for "estimated cleanup costs" under Coverage A. Therefore,
this request shall not be considered a new "claim" and the
most the Company will pay for any new and/or additional
"cleanup costs" under the policy shall be the "outstanding
loan balance" and "extra expenses" for the "covered location"
less any "estimated cleanup costs" previously paid or
scheduled to be paid to the "insured" by the Company.
If the actual "cleanup costs" incurred or paid by the
"insured" are a lesser amount than the "estimated cleanup
costs" payment the "insured" shall reimburse the Company for
those amounts up to the amount of the Company's payment for
the "estimated cleanup costs" under Coverage A of the policy.
3. MULTIPLE CLAIMS
Two or more "claim(s)" arising out of the same "pollution
event" with respect to a "covered location" shall be
considered a single "claim" and only one Deductible shall
apply regardless of the number of "insureds" or claimants
involved or "policy periods" during which such "claim(s)" or
"loss(es)", "cleanup costs", "estimated cleanup costs",
"outstanding loan balances" and "extra expenses" occurred, and
the liability of the Company shall not exceed the applicable
Limit of Liability. Any "claim" which takes place over two or
more "policy periods" shall be subject to the respective
Limits of Liability and Total for all Claims Limit of
Liability applicable to the first "policy period" during which
the first "claim" was reported to the Company.
Consistent with paragraph 2, above all claims for new and/or
additional "cleanup costs" arising from a "pollution event"
which was the subject of a "claim" payment for "estimated
cleanup costs" under Coverage A shall be considered one
"claim" and therefore, only one Deductible and one applicable
Limit of Liability shall apply.
4. CLAIMS ARISING FROM POTENTIAL CLAIMS
Any potential "claim" which results in a "claim" in a
subsequent uninterrupted renewal "policy period" shall be
subject to the respective Limit of Liability and Total for all
Claims Limit of Liability applicable to the "policy period" in
effect when the potential "claim" was reported to the Company.
5. CLAIMS REPORTED IN THE EXTENDED REPORTING PERIOD
The automatic extended reporting period and the extended
reporting period for up to three years in duration, if
purchased by the "named insured", shall not serve to increase
or reinstate the Limits of Liability set out in the
Declarations to the Policy. The Limit of Liability shall be
that which remains at the end of the "policy period".
E. EXHAUSTION OF LIMITS AND TRANSFER OF DUTIES
When the Each Claim or Total for all Claims Limit of Liability has
actually been exhausted in the payment of "loss(es). "cleanup costs"
and "claim(s)" the Company will:
1. notify the "insured", in writing, as soon as possible, that
such limits have been exhausted and the Company's duty to
defend "claim(s)" under INSURING AGREEMENT (Section I.)
Coverages C and/or D has also ended; and
Copyright(C)1999 by Zurich Insurance Company Page 10 of 17
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<PAGE>
2. commence and cooperate in the transfer of control to any
appropriate "insured" of all "claim(s)" which are subject to
that limit and which are reported to the Company before that
limit is exhausted.
VII. CLAIMS PROVISIONS
A. NOTICE OF CLAIM
1. In the event of a "claim", the "insured" or its designee must
give written or oral notice to the Company, as soon as
possible:
a. under Coverage A following the discovery of both a
"default" and a "pollution event";
b. under Coverage B following the discovery of a "pollution
event"; and
c. under Coverages C and D following the "insured's"
receipt of a "claim".
2. The notice shall contain particulars sufficient to identify an
"insured" and reasonably obtainable information with respect
to:
a. the time, place, "covered location" and circumstances of
the "claim", including how and when the "insured" first
became aware of the "claim";
b. the names and addresses of any injured parties and
available witnesses;
c. any and all applicable and relevant investigative or
engineering reports, data or information about the
"pollution event", "loss", "cleanup costs", "estimated
cleanup costs", "outstanding loan balances" and "extra
expenses" in the control of the "insured"; and
d. any and all other applicable and relevant information
known by the "insured" about the "pollution event",
"loss", "cleanup costs", "estimated cleanup costs",
"outstanding loan balance(s)", "extra expenses" and
"claim(s)".
3. If a "claim" is made, the "insured" shall forward to the
Company as soon as reasonably possible, every demand, notice,
summons, complaint, order or other process related to he
"claim" received by an "insured" or its designee.
B. NOTICE OF POTENTIAL CLAIM
If during the "policy period" the "insured" has actual knowledge of
a "pollution event or "asbestos or lead incident" which may
reasonably be expected to give rise to a "claim", the "insured" or
its designee shall provide written notice to the Company as soon as
reasonably possible during the "policy period" containing
particulars sufficient to identify an "insured" and reasonably
obtainable information with respect to:
1. the time, place, "covered location" and circumstances of the
"pollution event" or "asbestos or lead incident", including
how and when the "insured" first became aware of the
"pollution event";
2. the names and addresses of any injured parties and available
witnesses;
Copyright(C)1999 by Zurich Insurance Company Page 11 of 17
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<PAGE>
3. any and all applicable and relevant investigative or
engineering reports, data or information about the "pollution
event", "loss", "cleanup costs", "estimated cleanup costs",
"outstanding loan balance" and "extra expenses" in the control
of the "insured";
4. any and all other applicable and relevant information known by
the "insured" about the "claim", "pollution event", "loss",
"cleanup costs", "estimated cleanup costs", "outstanding loan
balance", "extra expenses" and possible "claim";
and any subsequent "claim", "loss", "cleanup costs", "estimated
cleanup costs", "outstanding loan balance" and "extra expenses" for
which coverage is provided by this policy which arises out of the
"pollution event" shall be deemed for the purposes of this policy to
have been made on the date upon which the written notice of the
"pollution event" was received by the Company.
C. NOTICE TO THE COMPANY
All "claim(s)" and potential "claim(s)" shall be reported to:
Zurich U.S.
Environmental Risk Management
One Liberty Plaza
165 Broadway, 53rd Floor
New York, New York
Attn: Environmental Counsel
or any other address as substituted by the Company by endorsement
onto the policy.
In the event of oral notice. the "insured" agrees to furnish a
written report to the Company as soon as reasonably possible.
D. SELECTION OF DEFENSE COUNSEL
1. In the event an "insured" is entitled by law to select
independent counsel to defend an "insured" at the Company's
expense, the "claim expense" including all attorney's fees the
Company must pay to that counsel are limited to rates the
Company actually pays to counsel the Company retains in the
ordinary course of business in the defense of similar claims
in the community where the "claim" arose or is being defended.
Additionally, the Company may exercise the right to require
that such counsel have certain minimum qualifications with
respect to their legal competency including experience in
defending "claim(s)" similar to the one pending against an
"insured" and to require such counsel to have errors and
omission insurance coverage. As respects any such counsel, and
"insured" agrees to use best efforts to have counsel timely
respond to the Company's request for information regarding the
"claim". Furthermore, an "insured" may at any time, by its
signed consent, waive its right to select independent counsel.
2. The "insured" shall have the option to consent to the
Company's choice of legal counsel, which consent shall not be
unreasonably withheld, delayed or denied.
Copyright(C)1999 by Zurich Insurance Company Page 12 of 17
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<PAGE>
E. SETTLEMENT
The "insured" shall not admit liability or settle any "claim"
without the Company's written consent which consent shall not be
unreasonably withheld, delayed or denied. If the Company recommends
a reasonable settlement of a "claim", the "insured" shall have the
opportunity to concur, such concurrence not to be unreasonably
withheld, delayed or denied. If the Company recommends a reasonable
settlement:
1. for an amount within the deductible and the "insured" refuses
to concur with such settlement, then the Company shall not be
liable for any "loss" in excess of the Deductible; or
2. for a total amount in excess of the balance of the Deductible
and an "insured" refuses to concur with such reasonable
settlement then the Company's liability for "loss" shall be
limited to that portion of the recommended settlement and the
costs, charges and expenses as of an "insured's" refusal which
exceed the Deductible and fall within the Limit of Liability.
F. VOLUNTARY PAYMENTS
No costs, charges or expenses subject to payment under this policy
shall be paid or incurred by the "insured" without the Company's
written consent, which consent shall not be unreasonably withheld,
delayed or denied.
Notwithstanding the foregoing, an "insured" may take such "emergency
action(s)" as reasonably necessary to prevent or mitigate further
damage, "clean up costs" and/or "loss(es)" under Coverages B, C
and/or D, provided an "insured" provides notice to the Company
within ninety-six (96) hours.
If oral notice is provided, the "insured" agrees to follow up in
writing.
VIII. CONDITIONS
A. ASSIGNMENT - Assignment of interest under this policy may be freely
assigned by the "named insured" to successor lienholders, trustees
or servicers as long as within thirty (30) days from the effective
date of the assignment the "named insured" provides the Company
notice of the assignment indicating the name and address of the
assignee. However, assignment of interest under this policy to any
other entity shall not bind the Company until its consent is
endorsed thereon which consent shall not be unreasonably withheld,
delayed or denied.
B. AUDIT AND INSPECTION- The Company shall be permitted, upon
reasonable prior notice to review and inspect on a continuing basis
an "insured's" policies and procedures applicable to an "insured's"
real estate servicing practices. Neither the Company's right to make
inspections, nor the actual undertaking thereof nor any report
thereon shall constitute an undertaking, on behalf of an "insured"
or orders, to determine or warrant that "insured's" real estate
servicing practices are in compliance with any law, rule or
regulation.
C. BANKRUPTCY - Bankruptcy or insolvency of an "insured" or "borrower"
will not relieve the Company of its obligations under this policy.
D. CANCELLATION - This policy may be canceled by the "named insured" by
surrender thereof to the Company or any of its authorized agents or
by mailing to the Company written notice stating when the
cancellation shall be effective. This policy may be canceled by the
Company only for reasons of fraud or material misrepresentation or,
non-payment of premium. The policy may be canceled by the Company by
mailing to the "named insured", at the address shown in this policy,
a notice stating when thereafter (not
Copyright(C)1999 by Zurich Insurance Company Page 13 of 17
All rights reserved. No part of this document covered by the copyrights hereon
may be reproduced or copied in any form by any means - graphic, electronic, or
mechanical, including photocopies, taping or information storage and retrieval
systems - without written permission of the Zurich Insurance Company.
<PAGE>
less than 60 days for fraud or material misrepresentation; or 10
days for non-payment of premium) such cancellation shall be
effective. The mailing of notice as aforesaid shall be sufficient
proof of notice. The time of surrender or the effective date and
hour of cancellation stated in the notice shall become the end of
the "policy period". Delivery of such written notice either by the
"named insured" or by the Company shall be equivalent to mailing.
E. CHANGES - Notice to any agent or knowledge possessed by any agent or
by any other person shall not effect a waiver or change in any part
of this policy or stop the Company from asserting any right under
the terms of this policy. The terms of this policy shall not be
waived or changed except by endorsement issued by the Company and
accepted by the "named insured" to form a part of this policy.
F. COOPERATION - The "insured" and the Company agree to assist and
cooperate in the fulfillment of the terms of the policy, including
the investigation, adjustment, defense or settlement of "claim(s)".
G. DECLARATIONS - By acceptance of this policy, the "first named
insured" agrees that the statements in the Application are their
agreements and representations, all "named insureds" agree that the
statements in the Declarations are their agreements, and that this
policy is issued in reliance upon the truth of such statements and
representations and that this policy embodies all agreements
existing between the "named insured" and the Company or any of its
agents relating to this insurance.
H. OTHER INSURANCE -
1. With regard to Coverage A, B or C, the insurance provided
under this policy is primary insurance, except when stated in
the Declarations to apply in excess of or contingent upon the
absence of other insurance. When this insurance is primary and
the "insured" has other insurance which is stated in the
Declarations to be applicable to the "claim", "loss", "cleanup
costs", "estimated cleanup costs", "outstanding loan balance"
or "extra expenses" on an excess basis, the amount of the
Company's liability under this policy shall not be reduced by
the existence of such excess insurance.
When both this insurance and other insurance apply to a
"claim", "loss", "cleanup costs", "estimated cleanup costs",
"outstanding loan balance" or "extra expenses" on the same
basis, whether primary, excess or contingent, the Company
shall not be liable under this policy for a greater proportion
of the "claim", "loss", "cleanup costs", "estimated cleanup
costs", "outstanding loan balance" or "extra expenses" than
that set out in the Declarations or the following contribution
provision, whichever method is lower:
a. Contribution by Equal Shares - Under this approach each
insurer contributes equal amounts until it has paid its
applicable limit of insurance or none of the "loss",
"cleanup costs", "estimated cleanup costs", "outstanding
loan balance" or "extra expenses" remains, whichever
occurs first; or
b. Contribution by Limits - each insurer's share is based
on the ratio of its applicable limit of insurance to the
total applicable limits of insurance of all insurers.
2. With regard to Coverage D the insurance provided under this
policy is excess over any other applicable, valid and
collectible insurance maintained by the "insured" and
applicable to the "claim".
Copyright(C)1999 by Zurich Insurance Company Page 14 of 17
All rights reserved. No part of this document covered by the copyrights hereon
may be reproduced or copied in any form by any means - graphic, electronic, or
mechanical, including photocopies, taping or information storage and retrieval
systems - without written permission of the Zurich Insurance Company.
<PAGE>
I. SEPARATION OF INSUREDS - Except with respect to the Limit of
Liability and any rights and duties specifically assigned to the
"named insured", this insurance applies:
1. as if each "named insured" were the only "named insured"; and
2. separately to each "insured" against whom "claim" is made.
Misrepresentation , concealment, breach of condition or violation of
any duty under this policy by one "insured" shall not prejudice the
interest of coverage for another "insured" under this policy.
J. SOLE AGENT - The first "named insured" or its designee shall act on
behalf of all "insureds" for all purposes, including but not limited
to the payment or return of premium, receipt and acceptance of any
endorsement issued to form a part of this policy, giving and
receiving notice of cancellation or non-renewal, and the exercise of
the rights provided in the extended reporting periods section.
K. SUBROGATION - In the event of payment under Coverage B, C or D of
this policy, the Company shall be subrogated to all an "insured's"
rights of recovery, up to the amount of the Company's payment of a
"claim" under the policy, thereof against any person or organization
except for rights against a "borrower" in possession of the "covered
location". An "insured" shall execute and deliver instruments and
papers and do whatever else is necessary to secure such rights. The
"insured" shall do nothing to prejudice such rights.
L. OFFSET AND REIMBURSEMENT -
1. Outstanding Loan Balance
If, under Coverage A, the Company makes a "claim" payment of the
"outstanding loan balance" for a "covered location", the Company has
additional rights to offset and reimbursement as follows.
The Company may elect as soon as reasonably possible after making
payment of the "outstanding loan balance" and any "extra expenses",
to have the "insured" assign to the Company, the "mortgage
agreement" and other associated documents which evidence the
extension of credit to the "borrower". Once election is made in
writing by the Company, the "insured" will execute all necessary
documents to effect such an assignment or transfer in a commercially
reasonable time.
If such an assignment or transfer is made, and the Company actually
receives funds, net of costs to collect, from the sale, transfer,
foreclosure, or workout of the "mortgage agreement" or "covered
location", it shall credit the "insured's" Total for All Claims
Limit of Liability up to the amount of the "outstanding loan
balance" and "extra expenses" paid by the Company within a
commercially reasonable time following receipt of such funds.
If no assignment or transfer is made because the Company has not
elected to have the "insured" make an assignment or transfer, then
if the "insured" receives funds, net of costs to collect, from the
sale, transfer. foreclosure, or workout of the "mortgage agreement"
or "covered location", it shall reimburse the Company up to the
payment of the "outstanding loan balance" and "extra expenses" paid
by the Company to the "insured", net of costs to collect, and remit
the same to the Company within a commercially reasonable time
following receipt of such funds.
For purposes of this subsection, the term "costs to collect" shall
include costs that relate to the exercise and acquisition of the
assignment, any costs to "cleanup" the "covered location", any costs
incurred for the protection and preservation of the value of
collateral, satisfaction of taxes, assessments and liens of
Copyright(C)1999 by Zurich Insurance Company Page 15 of 17
All rights reserved. No part of this document covered by the copyrights hereon
may be reproduced or copied in any form by any means - graphic, electronic, or
mechanical, including photocopies, taping or information storage and retrieval
systems - without written permission of the Zurich Insurance Company.
<PAGE>
third parties, and all sale costs, including reasonable attorneys
fees, whether of the "mortgage agreement", the debt or the "covered
location" itself.
2. Estimated Cleanup Costs
If, under Coverage A, the Company makes a "claim" payment of the
"estimated cleanup costs" for a "covered location", the Company
shall have additional rights to offset and reimbursement as follows.
If the "insured" receives funds, net of costs to collect, from the
sale, transfer, foreclosure, or workout of the "mortgage agreement"
or "covered location" in excess of the "outstanding loan balance"
and "extra expenses", the "insured" shall reimburse the Company with
the amount of funds up to the "estimated cleanup costs" paid at the
"covered location" within a commercially reasonable time following
receipt of such funds.
For purposes of this subsection, the term "costs to collect" shall
include only those costs paid by the "insured" to "cleanup" the
"covered location" to the extent that such costs were not part of an
"estimated cleanup costs" payment under the policy, for the
protection and preservation of collateral, satisfaction of taxes,
assessments and liens of third parties, and all sale costs,
including reasonable attorneys fees, whether of the "mortgage
agreement", the debt or the "covered location" itself.
If after one hundred eighty (180) days following the "claim"
payment, the "insured" has not attempted a sale, transfer,
foreclosure, or workout of the "mortgage agreement" or "covered
location", the Company may elect to have the "insured" assign to the
Company, the "mortgage agreement" and other associated documents
which evidence the "insured's" extension of credit to the
"borrower". It is in the discretion of the "insured" to accept the
Company's request for the assignment of the "mortgage agreement"
under this paragraph 2.
If such an assignment or transfer is made, and the Company actually
receives funds, net of costs to collect, from the sale, transfer,
foreclosure or workout of the "mortgage agreement" or "covered
location", it shall credit the "insured's" Total for All Claims
Limit of Liability up to the amount of "estimated cleanup costs"
paid by the Company within a commercially reasonable time following
receipt of such funds.
It is understood and agreed, between the "insured" and the Company
that each party makes no promises or representations with respect to
any efforts to achieve collection of funds under this Condition L.
M. THIRD PARTY BENEFICIARY - This policy shall apply to, inure to the
benefit of, and be binding upon the "insured" and the Company.
Except for the "insured's" permitted assignees or transferees no
third party beneficiaries are anticipated or intended policy.
Copyright(C)1999 by Zurich Insurance Company Page 16 of 17
All rights reserved. No part of this document covered by the copyrights hereon
may be reproduced or copied in any form by any means - graphic, electronic, or
mechanical, including photocopies, taping or information storage and retrieval
systems - without written permission of the Zurich Insurance Company.
<PAGE>
IMPORTANT NOTICE
SERVICE OF SUIT
In the event of failure of the Company to pay any amount claimed to be due
hereunder, the Company, at the request of the "insured", will submit to the
jurisdiction of a court of competent jurisdiction within the United States. It
is further agreed that service of process in such a suit shall be acknowledged
by:
General Counsel - Law Department
Steadfast Insurance Company
1400 American Lane
Schaumburg, Illinois 60196
or his or her representative, and that in any suit instituted against the
Company upon this policy, the Company will abide by the final decisions of such
court or of any appellate court in the event of any appeal. Further, pursuant to
any applicable statute of any state, territory or district of the United States
which makes provision therefore, the Company hereby designates the
Superintendent, Commissioner or Director of Insurance, other officer specified
for that purpose in the statute, or his successor or successors in office and
the above General Counsel as its true and lawful attorney upon whom may be
served any lawful process in any action, suit or proceeding instituted by or on
behalf of the "insured" or any beneficiary hereunder arising out of this policy
and hereby designate the above General Counsel as the person to whom the said
officer is authorized to mail such process or a true copy thereof.
IN WITNESS CLAUSE
In return for the payment of premium, and subject to the terms of this policy,
the Company agrees to provide insurance as stated in this policy. This policy
shall not be valid unless countersigned by a duly authorized representative of
the Company.
In Witness Whereof, the Company has executed this policy, and, where required,
has had it countersigned by a duly authorized representative of the Company.
PRESIDENT, CORPORATE SECRETARY
STEADFAST INSURANCE COMPANY STEADFAST INSURANCE COMPANY
Copyright(C)1999 by Zurich Insurance Company Page 17 of 17
All rights reserved. No part of this document covered by the copyrights hereon
may be reproduced or copied in any form by any means - graphic, electronic, or
mechanical, including photocopies, taping or information storage and retrieval
systems - without written permission of the Zurich Insurance Company.
<PAGE>
ENDORSEMENT NO. 1
COVERED LOCATION(S) [Logo]
ZURICH
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------------
Policy No. Eff. Date Exp. Date of Eff. Date Producer Add'l. Prem. Return
of Pol. Pol. of End. Prem.
- -------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
PLC 3561130-00 08/01/1999 See "Policy 08/0l/l999 09561000 N/A N/A
Period"
Definition
- -------------------------------------------------------------------------------------------
</TABLE>
NAMED INSURED AND MAILING ADDRESS: PRODUCER:
BANK OF AMERICA, N.A., Mortgage Loan ORIX ENVIRONMENTAL WARRANTY, INC.
Seller, REAL ESTATE CAPITAL MARKETS, 970 FARMINGTON AVENUE and
LLC, Master Servicer Special Servicer, WEST HARTFORD, CONNECTICUT 06107
and NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, Trustee and REMIC
Administrator
1717 MAIN STREET, SUITE 1400
DALLAS, TEXAS 75201
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.
This endorsement modifies insurance provided under the following:
SECURITIZATION COLLATERAL PROTECTION AND ENVIRONMENTAL LIABILITY INSURANCE
POLICY -
CLAIMS MADE AND REPORTED COVERAGE
In consideration of the payment of premium and the Deductible by the "named
insured" and in reliance upon the statements in the Application made a part
hereof, we agree with the "named insured", subject to all the terms, exclusions
and conditions of the policy tat the Declarations shall be amended to include
the following "covered location(s)":
<TABLE>
<CAPTION>
- ------------- ------------------- ---------------------- --------------- --------------- --------- ------------
LOAN # NAME ADDRESS CITY COUNTY STATE ZIP CODE
- ------------- ------------------- ---------------------- --------------- --------------- --------- ------------
<S> <C> <C> <C> <C> <C> <C>
1200963 Las Posas Plaza 98 Daily Drive Camarillo Ventura CA 93010
- ------------- ------------------- ---------------------- --------------- --------------- --------- ------------
1201136 Valencia 25371-95 Rye Canyon Santa Clarita Los Angeles CA 91355
Industrial Center Road
- ------------- ------------------- ---------------------- --------------- --------------- --------- ------------
1201185 Dollinger Central 201-11 Central Avenue Glendale Los Angeles CA 91203
- ------------- ------------------- ---------------------- --------------- --------------- --------- ------------
1201300 McGrath Court 7051-7095 Clairemont San Diego San Diego CA 92111
Retail Center Mesa Boulevard
- ------------- ------------------- ---------------------- --------------- --------------- --------- ------------
1201326 6231, 6241 Yarrow 6231, 6241 Yarrow Carlsbad San Diego CA 92009
Drive Drive
- ------------- ------------------- ---------------------- --------------- --------------- --------- ------------
1201383 The Park Manor 29405 - 29499 Rancho Temecula Riverside CA 92591
Apartments California Road
- ------------- ------------------- ---------------------- --------------- --------------- --------- ------------
1202811 300 Hamilton 300 Hamilton Avenue Palo Alto Santa Clara CA 94301
Building
- ------------- ------------------- ---------------------- --------------- --------------- --------- ------------
1203637 High Bluff - Del 12555 High Bluff San Diego San Diego CA 92130
Mar Drive
- ------------- ------------------- ---------------------- --------------- --------------- --------- ------------
</TABLE>
Copyright(C)1999 by Zurich Insurance Company Page 1 of 9
All rights reserved. No part of this document covered by the copyrights hereon
may be reproduced or copied in any form by any means - graphic, electronic, or
mechanical, including photocopies, taping or information storage and retrieval
systems - without written permission of the Zurich Insurance Company.
<PAGE>
<TABLE>
<CAPTION>
- ------------- ------------------- ---------------------- --------------- --------------- --------- ------------
LOAN # NAME ADDRESS CITY COUNTY STATE ZIP CODE
- ------------- ------------------- ---------------------- --------------- --------------- --------- ------------
<S> <C> <C> <C> <C> <C> <C>
1204346 Warner Fairview 2300 - 2320 S. Santa Ana Orange CA 92074
Business Park Fairview, et al.
- ------------- ------------------- ---------------------- --------------- --------------- --------- ------------
1792761 University 4724 Roosevelt Way Seattle King WA 98105
Volkswagon N.E.
- ------------- ------------------- ---------------------- --------------- --------------- --------- ------------
1794353 The Doyle Building 119 Pine Street/1527 Seattle King WA 98101
Second Avenue
- ------------- ------------------- ---------------------- --------------- --------------- --------- ------------
1794478 Richland Medical NE Corner of Swift Richland Benton WA 99352
Center & Pharmacy Blvd & Goethels Ave
- ------------- ------------------- ---------------------- --------------- --------------- --------- ------------
1794569 Salmon Creek 12919 N.E. Highway 99 Vancouver Clark WA 98665
Shopping Center
- ------------- ------------------- ---------------------- --------------- --------------- --------- ------------
1795863 Newport Shores 3220, 3240, 3260 Bellevue King WA 98005
Office/Warehouse 118th Avenue S.E.
- ------------- ------------------- ---------------------- --------------- --------------- --------- ------------
1796705 Meadowbrook 7610 West Nob Hill Yakima Yakima WA 98908
Mobile Home Estate Boulevard
- ------------- ------------------- ---------------------- --------------- --------------- --------- ------------
1796796 Upstairs/Downstairs 4238 & 4542 18th Seattle King WA 98105
Apartments Avenue NE
- ------------- ------------------- ---------------------- --------------- --------------- --------- ------------
1865195 Trailside 4801 - 24th Avenue NE Seattle King WA 98105
Apartments
- ------------- ------------------- ---------------------- --------------- --------------- --------- ------------
1865559 Carson Oaks 6725 Inglewood Avenue Stockton San Joaquin CA 95207
- ------------- ------------------- ---------------------- --------------- --------------- --------- ------------
1867084 Oskoui Health 11450 98th Avenue NE Kirkland King WA 98034
Club Portfolio
- ------------- ------------------- ---------------------- --------------- --------------- --------- ------------
1867084 Oskoui Health 2930 228th Avenue SE Issauah King WA 98027
Club Portfolio
- ------------- ------------------- ---------------------- --------------- --------------- --------- ------------
2034692 1-31 North 1-31 North Santa Barbara Santa Barbara CA 93101
Salsipuedes Street Salsipuedes Street
- ------------- ------------------- ---------------------- --------------- --------------- --------- ------------
2053130 Courthouse Square 1000-1050 Fourth San Rafael Mann CA 94901
Street
- ------------- ------------------- ---------------------- --------------- --------------- --------- ------------
2088680 Amdahl Building 415 Oakmead Parkway Sunnyvale Santa Clara CA 94088
- ------------- ------------------- ---------------------- --------------- --------------- --------- ------------
2091932 Century Center 26522 La Alameda Misston Viejo Orange CA 92691
Office Building
- ------------- ------------------- ---------------------- --------------- --------------- --------- ------------
2092120 Best Western 1630 S. Harbor Anaheim Orange CA 92802
Anaheim Inn Boulevard
- ------------- ------------------- ---------------------- --------------- --------------- --------- ------------
2092443 2121-2127 2121-2127 Fillmore San Francisco San Francisco CA 94115
Fillmore Street Street
- ------------- ------------------- ---------------------- --------------- --------------- --------- ------------
2093268 Valley North 2401, 2501 W. Phoenix Maricopa AZ 85027
Business Park Behrend Drive
- ------------- ------------------- ---------------------- --------------- --------------- --------- ------------
3000239 Americas Best 380 Crenshaw Torrance Los Angeles CA 90503
Self Storage Boulevard
- ------------- ------------------- ---------------------- --------------- --------------- --------- ------------
3000890 Jersey Business 10700 Jersey Rancho San Bernardino CA 91730
Park Boulevard Cucamonga
- ------------- ------------------- ---------------------- --------------- --------------- --------- ------------
3000908 Charter Business 3641-3851 Charter San Jose Santa Clara CA 95136
Park Park Drive
- ------------- ------------------- ---------------------- --------------- --------------- --------- ------------
3000932 Wild West 115-159 West Shaw Clovis Fresno CA 93612
Shopping Center Avenue
- ------------- ------------------- ---------------------- --------------- --------------- --------- ------------
3001096 2220 Lynn Road 2220 Lynn Road Thousand Oaks Ventura CA 91360
- ------------- ------------------- ---------------------- --------------- --------------- --------- ------------
3001211 View Engineering, 1650 - 1720 Voyager Simi Valley Ventura CA 93063
Inc. Drive
- ------------- ------------------- ---------------------- --------------- --------------- --------- ------------
3005691 Lynnwood Auto 21609 - 21619 Lynnwood Snohomish WA 98036
Center Highway 99 North
- ------------- ------------------- ---------------------- --------------- --------------- --------- ------------
</TABLE>
Copyright(C)1999 by Zurich Insurance Company Page 2 of 9
All rights reserved. No part of this document covered by the copyrights hereon
may be reproduced or copied in any form by any means - graphic, electronic, or
mechanical, including photocopies, taping or information storage and retrieval
systems - without written permission of the Zurich Insurance Company.
<PAGE>
<TABLE>
<CAPTION>
- ------------- ------------------- ---------------------- --------------- --------------- --------- ------------
LOAN # NAME ADDRESS CITY COUNTY STATE ZIP CODE
- ------------- ------------------- ---------------------- --------------- --------------- --------- ------------
<S> <C> <C> <C> <C> <C> <C>
3006491 25620 Rye Canyon 25620 Rye Canyon Road Santa Clarita Los Angeles CA 91355
Road
- ------------- ------------------- ---------------------- --------------- --------------- --------- ------------
3006681 Trojan Battery 12380 Clark Street Santa Fe Los Angeles CA 90670
Company Springs
- ------------- ------------------- ---------------------- --------------- --------------- --------- ------------
3006723 670 West 17th 670 West 17th Street Costa Mesa Orange CA 92627
Street
- ------------- ------------------- ---------------------- --------------- --------------- --------- ------------
3007127 14402 Franklin 14402 Franklin Avenue Tustin Orange CA 92680
Avenue
- ------------- ------------------- ---------------------- --------------- --------------- --------- ------------
3007648 Saratoga Palms 3850 South Mountain Las Vegas Clark NV 89121
Vista St.
- ------------- ------------------- ---------------------- --------------- --------------- --------- ------------
3007713 San Clemente 647 Camino De Los San Clemente Orange CA 92673
Professional Mares
Center
- ------------- ------------------- ---------------------- --------------- --------------- --------- ------------
3007754 12700 Ventura 12700 Ventura Studio City Los Angeles CA 91604
Boulevard Boulevard
- ------------- ------------------- ---------------------- --------------- --------------- --------- ------------
3008489 American River 2366 American River Sacramento Sacramento CA 95825
Commons Apartments Drive
- ------------- ------------------- ---------------------- --------------- --------------- --------- ------------
3008539 H. K. Valley 17607-17643 Sherman Reseda Los Angeles CA 91406
Shopping Center Way
- ------------- ------------------- ---------------------- --------------- --------------- --------- ------------
3009024 River Park 2575 West 24th Street Yuma Yuma AZ 85364
Apartments
- ------------- ------------------- ---------------------- --------------- --------------- --------- ------------
3009040 Willow Glen Plaza 1120-1130 Bird Avenue San Jose Santa Clara CA 95125
- ------------- ------------------- ---------------------- --------------- --------------- --------- ------------
3009263 Save-Most Self 23772 Via Fabricante Mission Viejo Orange CA 92691
Storage
- ------------- ------------------- ---------------------- --------------- --------------- --------- ------------
3009370 Greentree Village 1800 South Milton Rd. Flagstaff Coconino AZ 86001
Shopping Center County
- ------------- ------------------- ---------------------- --------------- --------------- --------- ------------
3009545 Village Green 2902 South 84th Tacoma Pierce WA 98409
Mobile Home Park Street
- ------------- ------------------- ---------------------- --------------- --------------- --------- ------------
3009586 Orcutt Ranch 295 N. Broadway Orcutt Santa Barbara CA 93455
Mobile Home Park
- ------------- ------------------- ---------------------- --------------- --------------- --------- ------------
3009594 Valley Village 6401 Country Club Rohnert Park Sonoma CA 94928
Mobile Home Park Drive
- ------------- ------------------- ---------------------- --------------- --------------- --------- ------------
3009636 Town & Country 1600 East Clark Orcutt Santa Barbara CA 93455
Mobile Home Park Avenue
- ------------- ------------------- ---------------------- --------------- --------------- --------- ------------
3009883 Industry West 200-272 South 5th Industry Los Angeles CA 91746
Industrial Park Avenue
- ------------- ------------------- ---------------------- --------------- --------------- --------- ------------
3009974 Watt-Eighty 3325-3437 Myrtle North Sacramento CA 95660
Business Park Avenue Highlands
- ------------- ------------------- ---------------------- --------------- --------------- --------- ------------
3010212 Quail Tree 7100 W Alexander Rd Las Vegas Clark NV 89129
Apartments
- ------------- ------------------- ---------------------- --------------- --------------- --------- ------------
3010428 Pueblo Village 1768-1989 Butte Wendover Elko NV 89883
Apartments Street
- ------------- ------------------- ---------------------- --------------- --------------- --------- ------------
3010717 Riverpark 6122-6166 West Las Vegas Clark County NV 89102
Sahara Avenue
- ------------- ------------------- ---------------------- --------------- --------------- --------- ------------
3011269 Amberwood Garden 26100 Gading Road Hayward Alameda CA 94544
Apartments
- ------------- ------------------- ---------------------- --------------- --------------- --------- ------------
3011426 4240 Hollis Street 4240 Hollis Street Emeryville Alameda CA 94608
- ------------- ------------------- ---------------------- --------------- --------------- --------- ------------
3011459 Downtown Centre 876-894 Marsh St. & San Luis San Luis CA 93401
879-899 Higuera St. Obispo Obispo
- ------------- ------------------- ---------------------- --------------- --------------- --------- ------------
</TABLE>
Copyright(C)1999 by Zurich Insurance Company Page 3 of 9
All rights reserved. No part of this document covered by the copyrights hereon
may be reproduced or copied in any form by any means - graphic, electronic, or
mechanical, including photocopies, taping or information storage and retrieval
systems - without written permission of the Zurich Insurance Company.
<PAGE>
<TABLE>
<CAPTION>
- ------------- ------------------- ---------------------- --------------- --------------- --------- ------------
LOAN # NAME ADDRESS CITY COUNTY STATE ZIP CODE
- ------------- ------------------- ---------------------- --------------- --------------- --------- ------------
<S> <C> <C> <C> <C> <C> <C>
3011632 Seaview Business 1010-1060 Calle San Clemente Orange CA 92674
Park Cordillera
- ------------- ------------------- ---------------------- --------------- --------------- --------- ------------
3011822 Las Vegas 5200 West Sahara Las Vegas Clark County NV 89102
Athletic Club Avenue
- ------------- ------------------- ---------------------- --------------- --------------- --------- ------------
3011889 Sante Fe Springs 11442-11570 E. Santa Fe Los Angeles CA 90670
Promenade Telegraph Road Springs
- ------------- ------------------- ---------------------- --------------- --------------- --------- ------------
3011921 Fabrica 2801 Pullman Street Santa Ana Orange CA 92705
International
Building
- ------------- ------------------- ---------------------- --------------- --------------- --------- ------------
3011970 Crockett 6211 Descanso Circle Buena Park Orange CA 90620
Industrial
Portfolio
- ------------- ------------------- ---------------------- --------------- --------------- --------- ------------
3011970 Crockett 120 East Ross Street El Centro Imperial CA 92243
Industrial
Portfolio
- ------------- ------------------- ---------------------- --------------- --------------- --------- ------------
3011970 Crockett 9211 Norwalk Santa Fe Los Angeles CA 90670
Industrial Boulevard Springs
Portfolio
- ------------- ------------------- ---------------------- --------------- --------------- --------- ------------
3012291 Cordovan Mobile 10035 Mills Station Sacramento Sacramento CA 95827
Home Estates Road
- ------------- ------------------- ---------------------- --------------- --------------- --------- ------------
3012309 Saratoga Palms at 522 North Lamb Las Vegas Clark NV 89110
Diamond Head Boulevard
- ------------- ------------------- ---------------------- --------------- --------------- --------- ------------
3012580 Oak Park 1325 Massachusetts Riverside Riverside CA 92507
Apartments Avenue
- ------------- ------------------- ---------------------- --------------- --------------- --------- ------------
3012705 Sierra Vista 825 East Grangeville Hanford King CA 93230
Mobile Home Park Boulevard
- ------------- ------------------- ---------------------- --------------- --------------- --------- ------------
3012887 Aim All Storage 25093 Bay Ave. Moreno Valley Riverside CA 92553
- ------------- ------------------- ---------------------- --------------- --------------- --------- ------------
3012937 Waterfront Plaza 500 Airport Boulevard Burlingame San Mateo CA 94010
- ------------- ------------------- ---------------------- --------------- --------------- --------- ------------
3013216 Warren Coronado 6230 Indian School Albuquerque Bernalillo NM 87110
Apartments Road NE
- ------------- ------------------- ---------------------- --------------- --------------- --------- ------------
3013232 Autumn Woods 5151 S. Utica Avenue Tulsa Tulsa OK 74105
Apartments
- ------------- ------------------- ---------------------- --------------- --------------- --------- ------------
3013273 Warren Inn 5000 Denton Highway Haltom City Tarrant TX 76117
Apartments
- ------------- ------------------- ---------------------- --------------- --------------- --------- ------------
3013471 Petrinis Rheem 594 Moraga Road Moraga Contra Costa CA 94556
Valley Shopping
Center
- ------------- ------------------- ---------------------- --------------- --------------- --------- ------------
3014289 Empire Terrace 12825 60th Lane South Seattle King WA 98178
Apartments
- ------------- ------------------- ---------------------- --------------- --------------- --------- ------------
3014420 The Courtyard 1111 South San Jose Mesa Maricopa AZ 85202
Apartments Street
- ------------- ------------------- ---------------------- --------------- --------------- --------- ------------
3014594 Walnut Square 3894-3964 Walnut Simi Valley Ventura CA 93063
Apartments Complex Avenue, et al
- ------------- ------------------- ---------------------- --------------- --------------- --------- ------------
3014958 Avioan Business 1865-1963 Del Amo Torrance Los Angeles CA 90501
Center Boulevard
- ------------- ------------------- ---------------------- --------------- --------------- --------- ------------
3015435 Silverado Estates 2900 West Apache Pinal AZ 85220
Superstition Junction
Boulevard
- ------------- ------------------- ---------------------- --------------- --------------- --------- ------------
3015500 E-Z Storage Desoto 9420 De Soto Ave. Chatsworth Los Angeles LA 91311
- ------------- ------------------- ---------------------- --------------- --------------- --------- ------------
3015518 E-Z Storage Van 5823 Peach Ave. Van Nuys Los Angeles CA 91411
Nuys
- ------------- ------------------- ---------------------- --------------- --------------- --------- ------------
3015526 E-Z Storage Pico 11470 Tennessee Los Angeles Los Angeles CA 90064
Avenue
- ------------- ------------------- ---------------------- --------------- --------------- --------- ------------
3015682 Regents Apartments 1260 Havenhurst Drive W. Hollywood Los Angeles CA 90046
- ------------- ------------------- ---------------------- --------------- --------------- --------- ------------
</TABLE>
Copyright(C)1999 by Zurich Insurance Company Page 4 of 9
All rights reserved. No part of this document covered by the copyrights hereon
may be reproduced or copied in any form by any means - graphic, electronic, or
mechanical, including photocopies, taping or information storage and retrieval
systems - without written permission of the Zurich Insurance Company.
<PAGE>
<TABLE>
<CAPTION>
- ------------- ------------------- ---------------------- --------------- --------------- --------- ------------
LOAN # NAME ADDRESS CITY COUNTY STATE ZIP CODE
- ------------- ------------------- ---------------------- --------------- --------------- --------- ------------
<S> <C> <C> <C> <C> <C> <C>
3015872 Tamarack Pointe 330 West Central Brea Orange CA 92621
Villas Avenue
- ------------- ------------------- ---------------------- --------------- --------------- --------- ------------
3016037 Sierra Vista 920 Sierra Vista Las Vegas Clark County NV 89109
Square Apartments Drive
- ------------- ------------------- ---------------------- --------------- --------------- --------- ------------
3016060 Viking Villas 1500 East Viking Road Las Vegas Clark NV 89119
Apartment
- ------------- ------------------- ---------------------- --------------- --------------- --------- ------------
3016292 Bouquet Canyon 26501-26547 Bouquet Santa Carita Los Angeles CA 91355
Plaza Canyon Road
- ------------- ------------------- ---------------------- --------------- --------------- --------- ------------
3016565 Garden Hill 31 Lassen Way Watsonville Santa Cruz CA 95076
Apartments
- ------------- ------------------- ---------------------- --------------- --------------- --------- ------------
3016698 Maryland Gardens 4529 West Ocotillo Glendale Maricopa AZ 85301
Apartments Road
- ------------- ------------------- ---------------------- --------------- --------------- --------- ------------
3018421 Mulberry Hollow 3540 S. Swenson Las Vegas Clark NV 89109
Apartments Street
- ------------- ------------------- ---------------------- --------------- --------------- --------- ------------
3019114 Buffalo 3925 S. Buffalo Drive Las Vegas Clark NV 89117
Mini-Storage
- ------------- ------------------- ---------------------- --------------- --------------- --------- ------------
3019775 Home Lots 1&2 Sierra Reno Washoe NV 89502
Depot/Parkside Executive Centre
Center Unit 3
- ------------- ------------------- ---------------------- --------------- --------------- --------- ------------
3019882 Juniper Court 1803 South Juniper Nampa Canyon ID 83686
Apartments Street
- ------------- ------------------- ---------------------- --------------- --------------- --------- ------------
3021284 250 W. Artesia 250 W. Artesia Compton Los Angeles CA 90220
Boulevard Boulevard
- ------------- ------------------- ---------------------- --------------- --------------- --------- ------------
3021334 Weddington 15370 Weddington Los Angeles Los Angeles CA 91411
Apartments Street
- ------------- ------------------- ---------------------- --------------- --------------- --------- ------------
3021458 San Tomas 2060 Walsh Avenue Santa Clara Santa Clara CA 94050
Business Centre
- ------------- ------------------- ---------------------- --------------- --------------- --------- ------------
3021508 Best Buy Plaza 3900 Tyler Street Riverside Riverside CA 92504
- ------------- ------------------- ---------------------- --------------- --------------- --------- ------------
3021714 Balfour Place 2300 Harvard Way Reno Washoe NV 89502
Apartments
- ------------- ------------------- ---------------------- --------------- --------------- --------- ------------
3021862 Castro Valley 2489 Grove Way Castro Valley Alameda CA 94546
Storage
- ------------- ------------------- ---------------------- --------------- --------------- --------- ------------
3021920 Foothill Ranch 26741, 26761, 26771, Foothill Ranch Orange CA 92610
Marketplace 26781 & 26795
Portola Parkway
- ------------- ------------------- ---------------------- --------------- --------------- --------- ------------
3022530 300 University 300 University Avenue Sacramento Sacramento CA 95825
Avenue
- ------------- ------------------- ---------------------- --------------- --------------- --------- ------------
3022746 Barnes & Noble 1400 Biddle Road Medford Jackson OR 77504
Booksellers
- ------------- ------------------- ---------------------- --------------- --------------- --------- ------------
3022969 Mesa Village 2701 E. Alfred Avenue Mesa Maricopa AZ 85204
Mobile Home Park
- ------------- ------------------- ---------------------- --------------- --------------- --------- ------------
3022993 L.A. Fitness 5536 West Bell Road Glendale Maricopa AZ 85308
Sports Club
- ------------- ------------------- ---------------------- --------------- --------------- --------- ------------
3023470 De Anza Country 7700-7840 & 7720 Riverside Riverside CA 92509
Shopping Center Limonite Avenue
- ------------- ------------------- ---------------------- --------------- --------------- --------- ------------
3023538 Vista Paints 2000-2040 E. Fullerton Orange CA 92631
Orangethorpe Avenue
- ------------- ------------------- ---------------------- --------------- --------------- --------- ------------
3024635 Folsom Lake Ford 12755 Folsom Folsom Sacramento CA 95630
Boulevard
- ------------- ------------------- ---------------------- --------------- --------------- --------- ------------
3024643 Folsom Lake Toyota 12747 Folsom Folsom Sacramento CA 95630
Boulevard
- ------------- ------------------- ---------------------- --------------- --------------- --------- ------------
3025335 Blue Sky Mobile 4800 Ocotillo Road Glendale Maricopa AZ 85301
Home Park
- ------------- ------------------- ---------------------- --------------- --------------- --------- ------------
</TABLE>
Copyright(C)1999 by Zurich Insurance Company Page 5 of 9
All rights reserved. No part of this document covered by the copyrights hereon
may be reproduced or copied in any form by any means - graphic, electronic, or
mechanical, including photocopies, taping or information storage and retrieval
systems - without written permission of the Zurich Insurance Company.
<PAGE>
<TABLE>
<CAPTION>
- ------------- ------------------- ---------------------- --------------- --------------- --------- ------------
LOAN # NAME ADDRESS CITY COUNTY STATE ZIP CODE
- ------------- ------------------- ---------------------- --------------- --------------- --------- ------------
<S> <C> <C> <C> <C> <C> <C>
3025343 4880 West 4880 West Rosencrans Hawthorne Los Angeles CA 90250
Rosencrans Avenue Avenue
- ------------- ------------------- ---------------------- --------------- --------------- --------- ------------
3026820 Water Court 850-920 Hampshire Thousand Oaks Ventura CA 91360
Office Buildings Road
- ------------- ------------------- ---------------------- --------------- --------------- --------- ------------
3032034 Highline 609 Highline Drive East Wenatchee Douglas WA 98802
Convalescent
Center
- ------------- ------------------- ---------------------- --------------- --------------- --------- ------------
3032406 Airport Office 2000 South Frontage Anchorage NAP AK 99501
Park Road
- ------------- ------------------- ---------------------- --------------- --------------- --------- ------------
3032760 Bancroft Building 0690 S.W. Bancroft Portland Multnomah OR 97201
Street
- ------------- ------------------- ---------------------- --------------- --------------- --------- ------------
3032786 Tromley 12505 S.W. Herman Tualatin Washington OR 97062
Industrial Road
Building
- ------------- ------------------- ---------------------- --------------- --------------- --------- ------------
3033032 Zidell Valve 10600 Corporate Drive Stafford Fort Bend TX 77477
Corporation County
- ------------- ------------------- ---------------------- --------------- --------------- --------- ------------
3033792 Las Vegas 4211 Paradise Road Las Vegas Clark NV 89102
Discount Golf &
Tennis
- ------------- ------------------- ---------------------- --------------- --------------- --------- ------------
3034733 Warren 1900 and 2000 Little Rock Pulaski AR 72227
House/TerraceII Reservoir Road
Apts.
- ------------- ------------------- ---------------------- --------------- --------------- --------- ------------
3034873 Hofmann 2355 Whitman Road Concord Contra Costa CA 94518
Industrial
Portfolio
- ------------- ------------------- ---------------------- --------------- --------------- --------- ------------
3034873 Hofmann 2350 Whitman Road Concord Contra Costa CA 94518
Industrial
Portfolio
- ------------- ------------------- ---------------------- --------------- --------------- --------- ------------
3034980 Warren House East 2911 East Indian Phoenix Maricopa AZ 85016
Apartments School Road
- ------------- ------------------- ---------------------- --------------- --------------- --------- ------------
3034998 Park Thomas 1819 East Thomas Road Phoenix Maricopa AZ 85016
Apartments
- ------------- ------------------- ---------------------- --------------- --------------- --------- ------------
3035128 Warren House 2269 Eastern Montgomery Montgomery AL 36101
Apartments Boulevard
- ------------- ------------------- ---------------------- --------------- --------------- --------- ------------
3036001 Newport 40 4160 124th Avenue Bellevue King WA 98006
S.E.
- ------------- ------------------- ---------------------- --------------- --------------- --------- ------------
3036670 Gilman Terrace 2572 Gilman Drive Seattle King WA 98102
Apartments II West
- ------------- ------------------- ---------------------- --------------- --------------- --------- ------------
3037868 Warren Inn 6501 Airport Mobile Mobile AL 36608
(Mobile) Boulevard
- ------------- ------------------- ---------------------- --------------- --------------- --------- ------------
3037876 Warren Village 6427 Airport Blvd Mobile Mobile AL 36608
Mobile
- ------------- ------------------- ---------------------- --------------- --------------- --------- ------------
3038361 Lakepoint/Ignacio 90 and 105 Digital Novato Marin CA 94949
Business Park Drive
- ------------- ------------------- ---------------------- --------------- --------------- --------- ------------
3038502 American Radio 1071 West Shaw Avenue Fresno Fresno CA 93711
Systems Building
- ------------- ------------------- ---------------------- --------------- --------------- --------- ------------
3039450 Ross Industrial 1050 N.W. Maryland Chehalis Lewis WA 98532
Park Avenue
- ------------- ------------------- ---------------------- --------------- --------------- --------- ------------
3039914 Span-O-Matic, Inc. 825 Columbia Street Brea Orange CA 92621
- ------------- ------------------- ---------------------- --------------- --------------- --------- ------------
3040078 Heritage Oaks 4033 McClain Way Carmichael Sacramento CA 95608
Apartments
- ------------- ------------------- ---------------------- --------------- --------------- --------- ------------
3040482 Bellevue Auto 620 116th Avenue NE Bellevue King WA 98004
Center
- ------------- ------------------- ---------------------- --------------- --------------- --------- ------------
3041399 Ironwood Square - 202-206 Ironwood Coeur D'Alene Kootenai ID 83814
Phase III Drive County
- ------------- ------------------- ---------------------- --------------- --------------- --------- ------------
</TABLE>
Copyright(C)1999 by Zurich Insurance Company Page 6 of 9
All rights reserved. No part of this document covered by the copyrights hereon
may be reproduced or copied in any form by any means - graphic, electronic, or
mechanical, including photocopies, taping or information storage and retrieval
systems - without written permission of the Zurich Insurance Company.
<PAGE>
<TABLE>
<CAPTION>
- ------------- ------------------- ---------------------- --------------- --------------- --------- ------------
LOAN # NAME ADDRESS CITY COUNTY STATE ZIP CODE
- ------------- ------------------- ---------------------- --------------- --------------- --------- ------------
<S> <C> <C> <C> <C> <C> <C>
3041589 Mission Village 32151 Camino San Juan Orange CA 92807
Center Capistrano Capistrano
- ------------- ------------------- ---------------------- --------------- --------------- --------- ------------
3043346 881 Fremont Ave. 881 Frement Ave. Los Altos Santa Clara CA 94022
- ------------- ------------------- ---------------------- --------------- --------------- --------- ------------
3043486 College Place 31600 126th Avenue SE Auburn King WA 98002
Mobile Home Park
- ------------- ------------------- ---------------------- --------------- --------------- --------- ------------
3044039 Desert Garden 1720 West Bonanza Las Vegas Clark NV 89106
Apartments Road
- ------------- ------------------- ---------------------- --------------- --------------- --------- ------------
3046208 3330 West Desert 3330 West Desert Inn Las Vegas Clark County NV 89102
Inn Road Road
- ------------- ------------------- ---------------------- --------------- --------------- --------- ------------
3046620 Victory Plaza 13003-13075 Victory N. Hollywood Los Angeles CA 91606
Shopping Center Blvd
- ------------- ------------------- ---------------------- --------------- --------------- --------- ------------
3047925 Shoreline Plaza 2500 Dickerson Road Reno Washoe NV 89503
Apartments
- ------------- ------------------- ---------------------- --------------- --------------- --------- ------------
3048741 Hearthstone 802 Mountain View Ellensburg Kittitas WA 98926
Cottage of Avenue
Ellensburg
- ------------- ------------------- ---------------------- --------------- --------------- --------- ------------
3049228 Alta Mesa 333 El Dorado Street Monterey Monterey CA 93940
Professional
Center #333
- ------------- ------------------- ---------------------- --------------- --------------- --------- ------------
3051141 Barnsdall Square 1607-1637 N. Vermont Hollywood Los Angeles CA 90027
Shopping Center Ave. & 4730-4738
Hollywood Blvd.
- ------------- ------------------- ---------------------- --------------- --------------- --------- ------------
3054277 SRO Center 3904, 3908, 3920 Bellingham Whatcom WA 98226
Meridian Street
- ------------- ------------------- ---------------------- --------------- --------------- --------- ------------
3054939 Executive Park 6753-6773 West Las Vegas Clark NV 89102
Charleston Boulevard
- ------------- ------------------- ---------------------- --------------- --------------- --------- ------------
3054947 Condor Pacific 31829 La Tienda Drive Westlake Los Angeles CA 91362
Industries Village
- ------------- ------------------- ---------------------- --------------- --------------- --------- ------------
3055209 Rancho Palisades 4849 Frankford Road Dallas Collin County TX 75287
Apartments
- ------------- ------------------- ---------------------- --------------- --------------- --------- ------------
3056132 Crossroads at 4747 Hopyard Road Pleasanton Alameda CA 94588
Hacienda Shopping
Center
- ------------- ------------------- ---------------------- --------------- --------------- --------- ------------
3056140 Crossroads at 4501 Hopyard Road Pleasanton Alameda CA 94588
Hacienda Shopping
Center
- ------------- ------------------- ---------------------- --------------- --------------- --------- ------------
3057932 Northwestern 105-119 Fourier Fremont Alameda CA 94539
Polytechnic Avenue
University
- ------------- ------------------- ---------------------- --------------- --------------- --------- ------------
3058575 Ledtronics 23105 Kashiwa Court Torrance Los Angeles CA 90505
- ------------- ------------------- ---------------------- --------------- --------------- --------- ------------
3074754 Chicago Avenue 2023 & 2025 Chicago Riverside Riverside CA 92507
Business Center Avenue
- ------------- ------------------- ---------------------- --------------- --------------- --------- ------------
3101144 Barclay Village 775 Cascade Avenue Oregon City Clackamas OR 97045
Apartments
- ------------- ------------------- ---------------------- --------------- --------------- --------- ------------
3101367 Montgomery Ward 5905 N Marine Drive Portland Multnomah OR 97217
Distribution
Warehouse
- ------------- ------------------- ---------------------- --------------- --------------- --------- ------------
3101599 Olympics West 929 Trosper Road Tumwater Thurston WA 98502
Retirement Center County
- ------------- ------------------- ---------------------- --------------- --------------- --------- ------------
</TABLE>
Copyright(C)1999 by Zurich Insurance Company Page 7 of 9
All rights reserved. No part of this document covered by the copyrights hereon
may be reproduced or copied in any form by any means - graphic, electronic, or
mechanical, including photocopies, taping or information storage and retrieval
systems - without written permission of the Zurich Insurance Company.
<PAGE>
<TABLE>
<CAPTION>
- ------------- ------------------- ---------------------- --------------- --------------- --------- ------------
LOAN # NAME ADDRESS CITY COUNTY STATE ZIP CODE
- ------------- ------------------- ---------------------- --------------- --------------- --------- ------------
<S> <C> <C> <C> <C> <C> <C>
3102076 Quail Hill 12375 Mt. Jefferson Lake Oswego Clackamas OR 97035
Apartments Terrace
- ------------- ------------------- ---------------------- --------------- --------------- --------- ------------
3102126 Pioneer Ridge Highway 213 & Meyers Oregon City Clackamas OR 97034
Apartments Road
- ------------- ------------------- ---------------------- --------------- --------------- --------- ------------
3102233 Crystal Lake 10500 SE 26th Avenue Milwaukee Clackamas OR 97222
Apartments
- ------------- ------------------- ---------------------- --------------- --------------- --------- ------------
3102282 SIMA Multifamily 664 Taybin Road NW Salem Polk OR 97304
Portfolio
- ------------- ------------------- ---------------------- --------------- --------------- --------- ------------
3102282 SIMA Multifamily 3500 NE 17th Drive Gresham Multnomah OR 97030
Portfolio
- ------------- ------------------- ---------------------- --------------- --------------- --------- ------------
3102282 SIMA Multifamily 1001 Hermitage Way SE Salem Marion OR 97302
Portfolio
- ------------- ------------------- ---------------------- --------------- --------------- --------- ------------
3102282 SIMA Multifamily 4954 Liberty Road SE Salem Marion OR 97306
Portfolio
- ------------- ------------------- ---------------------- --------------- --------------- --------- ------------
3102456 Springbrook 1000 Springbrook Road Newberg Yamhill OR 97132
Estates
Manufactured Home
Park Phase I
- ------------- ------------------- ---------------------- --------------- --------------- --------- ------------
3103405 Act III Theatre 200 N. 26th Avenue Cornelius Washington OR 97113
- ------------- ------------------- ---------------------- --------------- --------------- --------- ------------
4538179 Coeur d'Alenes East 3900 Broadway Spokane Spokane WA 99202
Company & Stock Avenue
Steel Metal
Fabrication Bldg.
- ------------- ------------------- ---------------------- --------------- --------------- --------- ------------
4538229 Puget Sound Tire 402 & 412 Lund Road Auburn King WA 98001
Building
- ------------- ------------------- ---------------------- --------------- --------------- --------- ------------
4538864 Slope Indicator 3450 Monte Villa Bothell Snohomish WA 98021
Company Parkway
- ------------- ------------------- ---------------------- --------------- --------------- --------- ------------
4539961 Lakes Medical 11311 Bridgeport Way Tacoma Pierce WA 98499
Plaza SW
- ------------- ------------------- ---------------------- --------------- --------------- --------- ------------
4540332 Gold Belt 16510 Centerfield Eagle River NAP AK 99577
Multifamily Drive
Portfolio
- ------------- ------------------- ---------------------- --------------- --------------- --------- ------------
4540332 Gold Belt 1540 Russian Jack Anchorage NAP AK 99508
Multifamily Drive
Portfolio
- ------------- ------------------- ---------------------- --------------- --------------- --------- ------------
4540332 Gold Belt 4611 Juneau Street Anchorage NAP AK 99503
Multifamily
Portfolio
- ------------- ------------------- ---------------------- --------------- --------------- --------- ------------
4540613 Inn at the Market 86 Pine Street Seattle King WA 98104
- ------------- ------------------- ---------------------- --------------- --------------- --------- ------------
4540878 Performance 2705 & 2619 South Tacoma Pierce WA 98409
Radiator Tacoma Way & 3016
South Fife St.
- ------------- ------------------- ---------------------- --------------- --------------- --------- ------------
4544128 Life Care Center 1980 Felicita Road Escondido San Diego CA 92025
of Escondido
- ------------- ------------------- ---------------------- --------------- --------------- --------- ------------
4544748 Cedar Meadows 8560 West Peoria Peoria Maricopa AZ 85345
Apartments Avenue
- ------------- ------------------- ---------------------- --------------- --------------- --------- ------------
4544987 Colorado 552 & 554 North Kennewick Benton WA 99336
Professional Park Colorado Street
- ------------- ------------------- ---------------------- --------------- --------------- --------- ------------
4545786 Merrill Gardens 11501 15th Avenue NE Seattle King WA 98125
at Northgate
- ------------- ------------------- ---------------------- --------------- --------------- --------- ------------
4546966 Columbia Square 13215 SE Mill Plain Vancouver Clark WA 98684
IV Shopping Center Boulevard
- ------------- ------------------- ---------------------- --------------- --------------- --------- ------------
</TABLE>
Copyright(C)1999 by Zurich Insurance Company Page 8 of 9
All rights reserved. No part of this document covered by the copyrights hereon
may be reproduced or copied in any form by any means - graphic, electronic, or
mechanical, including photocopies, taping or information storage and retrieval
systems - without written permission of the Zurich Insurance Company.
<PAGE>
<TABLE>
<CAPTION>
- ------------- ------------------- ---------------------- --------------- --------------- --------- ------------
LOAN # NAME ADDRESS CITY COUNTY STATE ZIP CODE
- ------------- ------------------- ---------------------- --------------- --------------- --------- ------------
<S> <C> <C> <C> <C> <C> <C>
4547279 Freshmark Foods 22613 76th Avenue Kent King WA 98035
Building South
- ------------- ------------------- ---------------------- --------------- --------------- --------- ------------
4547840 The Weatherly Inn 6016 N. Highland Tacoma Pierce WA 98406
Parkway
- ------------- ------------------- ---------------------- --------------- --------------- --------- ------------
4547972 Percival Plaza 606 & 626 Columbia Olympia Thurston WA 98501
Street, & 601 N.
Capital Way
- ------------- ------------------- ---------------------- --------------- --------------- --------- ------------
4549193 Barkley Village 2915-2950 Newmarket Bellingham Whatcom WA 98226
Street
- ------------- ------------------- ---------------------- --------------- --------------- --------- ------------
8317463 Broadway Public 3501 South Lindsay Boise Ada ID 83706
Storage II Street
- ------------- ------------------- ---------------------- --------------- --------------- --------- ------------
</TABLE>
All other terms and conditions of the policy shall apply and remain unchanged.
Signed by: /s/ M. Dillon 8/13/99
-------------------------- -------------------
Authorized Representative Date
Copyright(C)1999 by Zurich Insurance Company Page 9 of 9
All rights reserved. No part of this document covered by the copyrights hereon
may be reproduced or copied in any form by any means - graphic, electronic, or
mechanical, including photocopies, taping or information storage and retrieval
systems - without written permission of the Zurich Insurance Company.
<PAGE>
ENDORSEMENT NO. 2
BROAD FORM NUCLEAR ENERGY LIABILITY EXCLUSION [Logo]
ZURICH
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------------
Policy No. Eff. Date Exp. Date of Eff. Date Producer Add'l. Prem. Return
of Pol. Pol. of End. Prem.
- -------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
PLC 3561130-00 08/01/1999 See "Policy 08/0l/l999 09561000 N/A N/A
Period"
Definition
- -------------------------------------------------------------------------------------------
</TABLE>
NAMED INSURED AND MAILING ADDRESS: PRODUCER:
BANK OF AMERICA, N.A., Mortgage Loan ENVIRONMENTAL WARRANTY, INC.
Seller, ORIX REAL ESTATE CAPITAL 970 FARMINGTON AVENUE and
MARKETS, LLC, Master Servicer Special WEST HARTFORD, CONNECTICUT 06107
Servicer, and NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION, Trustee and REMIC
Administrator
1717 MAIN STREET, SUITE 1400
DALLAS, TEXAS 75201
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.
This endorsement modifies insurance provided under the following:
SECURITIZATION COLLATERAL PROTECTION AND ENVIRONMENTAL LIABILITY INSURANCE
POLICY -
CLAIMS MADE AND REPORTED COVERAGE
In consideration of the payment of premium and the Deductible by the
"named insured" and in reliance upon the statements in the Application
made a part hereof, we agree with the "named insured", subject to all the
terms, exclusions and conditions of the policy that Section IV. EXCLUSIONS
shall be amended to include the following exclusion:
(a) any coverage for "outstanding loan balance", "extra expenses",
"estimated cleanup costs", "cleanup costs" and/or "loss(es)" including
"claim expense(s)":
(1) With respect to which an "insured" under the policy is also an
"insured" under a nuclear energy liability policy issued by
Nuclear Energy Liability Insurance Association, Mutual Atomic
Energy Liability Underwriters, Nuclear Insurance Association of
Canada or any of their successors, or would be an "insured"
under any such policy but for its termination upon exhaustion of
its limit of liability; or
(2) Resulting from the "hazardous properties" of "nuclear material"
and with respect to which (a) any person or organization is
required to maintain financial protection pursuant to the Atomic
Energy Act of 1954, or any law amendatory thereof, or (b) the
"insured" is, or had this policy not been issued would be,
entitled to indemnity from the United States of America, or any
agency thereof,
Copyright(C)1999 by Zurich Insurance Company Page 1 of 3
All rights reserved. No part of this document covered by the copyrights hereon
may be reproduced or copied in any form by any means - graphic, electronic, or
mechanical, including photocopies, taping or information storage and retrieval
systems - without written permission of the Zurich Insurance Company.
<PAGE>
under any agreement entered into by the United States of
America, or any agency thereof, with any person or organization.
(b) Under any Medical Payments coverage, to expenses incurred with respect
to "bodily injury" resulting from the "hazardous properties" of
"nuclear material" and arising out of the operation of a "nuclear
facility" by any person or organization.
(c) Under any coverage, for "outstanding loan balance", "extra expenses",
"estimated cleanup costs", "cleanup costs" or "loss(es)" including
"claim expense(s)" resulting from "hazardous properties" of "nuclear
material", if:
(1) The "nuclear material" (a) is at any "nuclear facility" owned by
or operated by or on behalf of, an "insured" or (b) has been
discharged or dispersed therefrom;
(2) The "nuclear material" is contained in "spent fuel", or "waste"
at any time possessed, handled, used, processed, stored,
transported or disposed of, by or on behalf of an "insured"; or
(3) The "outstanding loan balance", "extra expenses", "estimated
cleanup costs", "cleanup costs", and/or "loss(es)" including
"claim expenses" arises out of the furnishing by an "insured" of
services, materials, parts or equipment in connection with the
planning, construction, maintenance, operation or use of any
"nuclear facility", but if such facility is located within the
United States of America, its territories or possessions or
Canada, this exclusion (3) applies only to "property damage" to
such "nuclear facility" and any property thereat.
As used in this exclusion:
"Hazardous properties" includes radioactive, toxic or explosive
properties.
"Nuclear material" means "source material", "special nuclear material" or
"by-product material".
"Source material", "special nuclear material", and "by-product material"
have the meanings given them in the Atomic Energy act of 1954 or in any
law amendatory thereof.
"Spent fuel" means any fuel element or fuel component, solid or liquid,
which has been used or exposed to radiation in a "nuclear reactor".
"Waste" means any waste matter (a) containing "by-product material" other
than the tailings or wastes produced by the extraction or concentration of
uranium or thorium from any ore processed primarily for its "source
material" content, and (b) resulting from the operation by any person or
organization of any "nuclear facility" included under the first two
paragraphs of the definition of "nuclear facility".
"Nuclear facility" means:
(a) Any "nuclear reactor";
(b) Any equipment or device designed or used for (1) separating the
isotopes of uranium or plutonium, (2) processing or utilizing "spent
fuel", or (3) handling, processing or packaging "waste";
(c) Any equipment or device used for the processing, fabricating or
alloying of "special nuclear material" if at any time the total amount
of such material in the custody of the "insured" at the premises where
such
Copyright(C)1999 by Zurich Insurance Company Page 2 of 3
All rights reserved. No part of this document covered by the copyrights hereon
may be reproduced or copied in any form by any means - graphic, electronic, or
mechanical, including photocopies, taping or information storage and retrieval
systems - without written permission of the Zurich Insurance Company.
<PAGE>
equipment or device is located consists of or contains more than 25
grams of plutonium or uranium 233 or any combination thereof, or more
than 250 grams of uranium 235;
(d) Any structure, basin, excavation, premises or place prepared or used
for the storage or disposal of "waste";
and includes the site on which any of the foregoing is located, all
operations conducted on such site and all premises used for such
operations.
"Nuclear reactor" means any apparatus designed or used to sustain nuclear
fission in a self-supporting chain reaction or to contain a critical mass
of fissionable material. "Property damage" includes all forms of
radioactive contamination of property.
All other terms and conditions of the policy shall apply and remain unchanged.
Signed by: /s/ M. Dillon 8/13/99
-------------------------- -------------------
Authorized Representative Date
Copyright(C)1999 by Zurich Insurance Company Page 3 of 3
All rights reserved. No part of this document covered by the copyrights hereon
may be reproduced or copied in any form by any means - graphic, electronic, or
mechanical, including photocopies, taping or information storage and retrieval
systems - without written permission of the Zurich Insurance Company.
<PAGE>
ENDORSEMENT NO. 3
INCREASED POLICY LIMITS [Logo]
ZURICH
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------------
Policy No. Eff. Date Exp. Date of Eff. Date Producer Add'l. Prem. Return
of Pol. Pol. of End. Prem.
- -------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
PLC 3561130-00 08/01/1999 See "Policy 08/0l/l999 09561000 N/A N/A
Period"
Definition
- -------------------------------------------------------------------------------------------
</TABLE>
NAMED INSURED AND MAILING ADDRESS: PRODUCER:
BANK OF AMERICA, N.A., Mortgage Loan ENVIRONMENTAL WARRANTY, INC.
Seller, ORIX REAL ESTATE CAPITAL 970 FARMINGTON AVENUE and
MARKETS, LLC, Master Servicer Special WEST HARTFORD, CONNECTICUT 06107
Servicer, and NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION, Trustee and REMIC
Administrator
1717 MAIN STREET, SUITE 1400
DALLAS, TEXAS 75201
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.
This endorsement modifies insurance provided under the following:
SECURITIZATION COLLATERAL PROTECTION AND ENVIRONMENTAL LIABILITY INSURANCE
POLICY -
CLAIMS MADE AND REPORTED COVERAGE
In consideration of the payment of premium and the Deductible by you and in
reliance upon the statements in the Application made a part hereof, we agree
with you, subject to all the terms, exclusions and conditions of the policy that
with respect to the following "covered location" only, Loan #3055209, Rancho
Palisades Apartments, 4849 Frankford Road, Dallas, Collin County, TX 75287
Item 3., of the Declarations shall be amended, as follows:
Coverage A: $27,000,000 "Outstanding loan balance" and "Extra
expenses"
Coverages B, C and D: $26,000,000 Each Claim
It is further understood and agreed between the "named insured" and the Company
that the Limits of Liability above shall erode the Total for all Claims under
Coverages A, B, C and/or D Limit of Liability shown in the Declarations to this
policy.
All other terms and conditions of the policy shall apply and remain unchanged.
Signed by: /s/ M. Dillon 8/13/99
-------------------------- -------------------
Authorized Representative Date
Copyright(C)1999 by Zurich Insurance Company Page 1 of 1
All rights reserved. No part of this document covered by the copyrights hereon
may be reproduced or copied in any form by any means - graphic, electronic, or
mechanical, including photocopies, taping or information storage and retrieval
systems - without written permission of the Zurich Insurance Company.
<PAGE>
ENDORSEMENT NO. 4
ESTIMATED CLEANUP COSTS PROTOCOL [Logo]
ZURICH
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------------
Policy No. Eff. Date Exp. Date of Eff. Date Producer Add'l. Prem. Return
of Pol. Pol. of End. Prem.
- -------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
PLC 3561130-00 08/01/1999 See "Policy 08/0l/l999 09561000 N/A N/A
Period"
Definition
- -------------------------------------------------------------------------------------------
</TABLE>
"NAMED INSURED" AND MAILING ADDRESS: PRODUCER:
BANK OF AMERICA, N.A., Mortgage Loan ENVIRONMENTAL WARRANTY, INC.
Seller, ORIX REAL ESTATE CAPITAL 970 FARMINGTON AVENUE and
MARKETS, LLC, Master Servicer Special WEST HARTFORD, CONNECTICUT 06107
Servicer, and NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION, Trustee and REMIC
Administrator
1717 MAIN STREET, SUITE 1400
DALLAS, TEXAS 75201
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.
This endorsement modifies insurance provided under the following:
SECURITIZATION COLLATERAL PROTECTION AND ENVIRONMENTAL LIABILITY INSURANCE
POLICY
CLAIMS MADE AND REPORTED COVERAGE
In consideration of the payment of the premium and the Deductible by the "named
insured" and the reliance upon the statements set forth in the Application made
a part hereof, the Company agrees with the "named insured", subject to all the
terms, exclusions, conditions of the policy, that the following shall apply to
determine" estimated cleanup costs" applicable to Coverage A of the policy:
I. "ESTIMATED CLEANUP COSTS" DETERMINATION PROTOCOL
The purpose of this endorsement is to determine the reasonable and necessary
"estimated cleanup costs" which would be required to investigate, treat,
monitor, remove, remediate, neutralize or immobilize contaminated soil, surface
water, groundwater, stream sediment, air and similar or other environmental
media of and from the "covered location". In the event a "claim" is made by the
"named insured" under the terms of this policy which triggers Coverage A, the
"estimated cleanup costs" shall be determined pursuant to the following
protocol:
A. The "named insured's" proposal for scope of work to determine
"estimated cleanup costs"
Within thirty (30) days from the Company's receipt of a "claim"
under Coverage A, the "named insured" shall select an environmental
consultant ("Consultant"), acceptable to the Company or who at the
time of the "claim" appears on the "named insured's" and Company's
list of accepted consultants and is a nationally recognized
consultant with experience in the region where the "covered
location" is situated. The Consultant shall have thirty (30) days to
develop a proposal and scope of work to determine the
Copyright(C)1999 by Zurich Insurance Company Page 1 of 7
All rights reserved. No part of this document covered by the copyrights hereon
may be reproduced or copied in any form by any means - graphic, electronic, or
mechanical, including photocopies, taping or information storage and retrieval
systems - without written permission of the Zurich Insurance Company.
<PAGE>
"estimated cleanup costs". The cost of the Consultant shall be the
obligation of the Company. The Consultant shall consider the
attached scope of work at Section IV., as guidance in developing the
proposed scope of work for "estimated cleanup costs" ("Scope of Work
for Estimated Cleanup Costs"). This proposal will be the "named
insured's" Scope of Work for Estimated Cleanup Costs. The "named
insured" shall provide the Company with the "named insured's"
proposed Scope of Work for Estimated Cleanup Costs within five (5)
days of receipt of same from the Consultant. No later than
twenty-one (21) days after receipt of the proposal from the "named
insured", the Company shall provide to the "named insured" written
notice of acceptance or rejection, in whole or in part, and the
basis of such rejection, of the proposed Scope of Work for Estimated
Cleanup Costs. If the "named insured's" proposed Scope of Work for
Estimated Cleanup Cost is acceptable to the Company, the Company
shall send written confirmation of its acceptance to the "named
insured". Within fourteen (14) days of the "named insured's" receipt
of the Company's written rejection of the proposed Scope of Work for
Estimated Cleanup Cost, the "named insured" and the Company agree to
cooperate in good faith and use best efforts to resolve any dispute
to determine a mutually agreeable Scope of Work for Estimated
Cleanup Costs. In the event of failure to resolve such dispute. the
"named insured" and the Company agree to come to a final
determination of the Scope of Work for Estimated Cleanup Costs using
the Dispute Resolution Procedure in Section II, of this endorsement.
If reasonable under the circumstances and in accordance with
paragraph B. (I) below, the Consultant can be authorized to
implement those portions of the Scope of Work For Estimated Cleanup
Costs that are acceptable to the Company pending resolution of any
dispute.
B. THE CONTRACT WITH THE CONSULTANT TO DETERMINE "ESTIMATED CLEANUP
COSTS"
Within five (5) days of the Company and "named insured's" agreement
with the proposed Scope of Work for Estimated Cleanup Costs, the
Consultant shall be retained by written contract with the "named
insured". The contract shall specifically state that the Consultant
has a duty to the Company as well as the "named insured", the
Company is a third party beneficiary of the contract, and that the
Company is relying on the results thereunder for use in claim
valuation. The Consultant shall perform its scope of work to
determine "estimated cleanup costs" in accordance with the scope of
work as described in the contract between the "named insured" and
the Consultant as agreed to by the Company in paragraph A., above.
1. The Consultant shall produce a written report ("Estimated
Cleanup Costs Report") indicating its determination of
"estimated cleanup costs" which report shall describe in
detail, and in such form and content as is consistent with the
industry standard, and include the methodology and ratio tale
by which the Consultant reached its determination of
"estimated cleanup costs". A copy of such report shall be
provided to the Company within five (5) days of its receipt by
the "named insured".
2. The Company shall use best efforts to review and accept or
contest the Estimated Cleanup Costs Report within twenty-one
(21) days of the Company's receipt of the report. If the
Company agrees, it shall become a determination of "estimated
cleanup costs" for "claim" purposes under Coverage A of the
policy. However, in the event that the Company contests the
Consultant's determination of "estimated cleanup costs", then
the Company shall be provided fourteen (14) days to conduct
variance discussions with the Consultant and the "named
insured" with all written submissions copied to the other
party. If the variance discussions with the Consultant do not
result in agreement on the "estimated cleanup costs", then the
Company and the "named insured" will as soon as possible,
proceed to resolve the dispute pursuant to Section II., of
this endorsement.
Copyright(C)1999 by Zurich Insurance Company Page 2 of 7
All rights reserved. No part of this document covered by the copyrights hereon
may be reproduced or copied in any form by any means - graphic, electronic, or
mechanical, including photocopies, taping or information storage and retrieval
systems - without written permission of the Zurich Insurance Company.
<PAGE>
II. DISPUTE RESOLUTION PROCEDURE
In the event of a dispute between the "named insured" and the Company
regarding the establishment of the proposed Scope of Work for Estimated
Cleanup Costs with the Consultant or the determination of "estimated
cleanup costs" contained in the Estimated Cleanup Cost Report the Company
and the "named insured" agree to follow this dispute resolution procedure.
Within ten (10) days of the Company and "named insured's" failure to agree
on the proposed Scope of Work for Estimated Cleanup Costs or a
determination of "estimated cleanup costs" contained in the Estimated
Cleanup Cost Report, the Company and the "named insured" shall jointly
retain a Consultant to act as an umpire ("Umpire Consultant") which is
mutually acceptable to the "named insured" and to the Company or who at
the time of the "claim" appears on the "named insured's" and Company's
list of accepted consultants and is a nationally recognized consultant
with experience in the region where the "covered location" is situated.
The cost of the Umpire Consultant shall be the obligation of the Company.
A. PROPOSED SCOPE OF WORK FOR ESTIMATED CLEANUP COSTS AND/OR ESTIMATED
CLEANUP COSTS REPORT DISPUTE RESOLUTION
The Umpire Consultant shall perform a "peer review" of the initial
Consultant's proposed Scope of Work for Estimated Cleanup Costs in
accordance with the Scope of Work set forth in Section IV., of this
endorsement or perform a "peer review" of the Estimated Cleanup
Costs Report including the "estimated cleanup costs" determination.
Within ten (10) days after the retention of the Umpire Consultant
the Company and the "named insured" or its designee shall be
provided the opportunity to present to the Umpire Consultant by
appearance (or in written submission with a copy to the other
party), information relevant to the Scope of Work for Estimated
Cleanup Costs and/or the Estimated Cleanup Costs Report with five
(5) days to reply to any submission. Within thirty-five (35) days
after the selection and the retention of the Umpire Consultant, the
Umpire Consultant shall determine the Scope of Work for Estimated
Cleanup Costs and/or the Estimated Cleanup Costs Report including
the "estimated cleanup costs" determination. A determination of the
Scope of Work/or Estimated Cleanup Costs and/or the Estimated
Cleanup Costs Report including the "estimated cleanup costs"
determination which is agreed to by the Umpire Consultant and either
the Company or the "named insured" shall be determinative for the
purpose of this endorsement.
III. THE ESTIMATED CLEANUP COSTS DETERMINATION AND ITS USE UNDER COVERAGE A
The Company will apply the "estimated cleanup costs" determination to
arrive at a "claim" payment under Coverage A. If the Company makes a
payment of "estimated cleanup costs" to the "named insured" under Coverage
A then the "named insured" may elect to have the "estimated cleanup costs"
payment made by the Company constitute a final determination of the
"claim" under the policy.
A. ESTIMATED CLEANUP COSTS CLAIM PAYMENT UNDER COVERAGE A AS A FINAL
DETERMINATION
If the "named insured" elects to have a "claim" payment of
"estimated cleanup costs" constitute a final determination then the
Company shall not have any further obligation for payment under the
policy for "estimated cleanup costs" or any new and/or additional
"cleanup costs" resulting from the "pollution event" which is the
subject of the "claim" payment for "estimated cleanup costs". The
"named insured" and the Company agree to execute all reasonable and
necessary settlement documents simultaneously with the Company's
payment to the "named insured" of the "estimated cleanup costs"
under Coverage A.
Copyright(C)1999 by Zurich Insurance Company Page 3 of 7
All rights reserved. No part of this document covered by the copyrights hereon
may be reproduced or copied in any form by any means - graphic, electronic, or
mechanical, including photocopies, taping or information storage and retrieval
systems - without written permission of the Zurich Insurance Company.
<PAGE>
B. ESTIMATED CLEANUP COSTS CLAIM PAYMENT UNDER COVERAGE A NOT A FINAL
DETERMINATION
If the "estimated cleanup costs" is not a final determination of the
"claim" under the policy and the "named insured" elects to have a
"cleanup" performed at the "covered location", any difference
between "estimated cleanup costs" paid to the "named insured" and
actual "cleanup costs" incurred shall be handled in the following
manner.
1. DISCOVERY OF NEW AND/OR ADDITIONAL "CLEANUP COSTS" WHEN THE
"NAMED INSURED" HAS ELECTED TO PERFORM THE "CLEANUP" AT THE
"COVERED LOCATION"
a. If during the "cleanup" at the "covered location" new
and/or additional "cleanup costs" are discovered which
arise from the "pollution event" which was the subject
of a "claim" payment for "estimated cleanup costs" but
were not part of the prior "estimated cleanup costs"
payment, or occur because of the inaccuracy of the
"estimated cleanup costs" determination then the Company
may have obligations for additional "cleanup costs"
covered under the terms and conditions of the policy.
The "named insured" must notify the Company, in writing,
as soon as possible following the discovery of new
and/or additional "cleanup costs". This request for new
and/or additional "cleanup costs" which arise from the
"pollution event" which was the subject of a "claim"
payment for "estimated cleanup costs" shall be
considered part of the same "claim" for "estimated
cleanup costs". Therefore, this request shall not be
considered a new "claim" and the most the Company will
pay for any new and/or additional "cleanup costs" under
the policy shall be the "outstanding loan balance" and
"extra expenses" for a "covered location" less any
"estimated cleanup costs" previously paid or scheduled
to be paid to the "named insured" by the Company.
b. The Company agrees to provide a prompt written
determination to the "named insured" with regard to
whether the new and/or additional "cleanup costs" are
covered under the terms and conditions of the policy in
accordance with customarily accepted standards in the
insurance industry. If the "cleanup costs" are covered
under the terms and conditions of the policy then the
Company agrees to provide payment for such covered
"cleanup costs" to the "named insured" or its designee.
c. If the actual "cleanup costs" incurred or paid by the
"named insured" during the "cleanup" at a "covered
location" are a lesser amount than the "estimated
cleanup costs" payment then the "named insured" shall
reimburse the Company for those amounts up to the amount
of the Company's payment for the "estimated cleanup
costs" under Coverage A of the policy.
2. COOPERATION BETWEEN THE "NAMED INSURED" AND THE COMPANY WHEN
THE "NAMED INSURED" ELECTS TO HAVE A "CLEANUP" PERFORMED AT
THE "COVERED LOCATION" AND FOR WHICH THE COMPANY HAS MADE A
"CLAIM" PAYMENT OF "ESTIMATED CLEANUP COSTS"
a. The "named insured" and the Company agree to cooperate
with each other in the administration of the "cleanup"
at the "covered location" and the "named insured" agrees
not to incur or authorize to be incurred by any third
party, including the "borrower", any costs materially
inconsistent with those which are described in the
Estimated Cleanup Costs Report and the "estimated
cleanup costs" payment without the express written
consent of the Company, which consent shall not be
unreasonably withheld, delayed or denied. The "named
insured" acknowledges that if costs which are materially
Copyright(C)1999 by Zurich Insurance Company Page 4 of 7
All rights reserved. No part of this document covered by the copyrights hereon
may be reproduced or copied in any form by any means - graphic, electronic, or
mechanical, including photocopies, taping or information storage and retrieval
systems - without written permission of the Zurich Insurance Company.
<PAGE>
inconsistent are paid or incurred without the Company's
consent the Company shall have no obligation under the
policy to provide coverage for such costs. If the "named
insured" deems that any expenditure of costs within the
"estimated cleanup costs" payment is necessary but the
cost is for a task inconsistent with the description and
conclusions of the Estimated Cleanup Costs Report, the
"named insured" agrees to notify the Company as soon as
reasonably possible about such costs and seek the
consent of the Company, which consent shall not be
unreasonably withheld, delayed or denied, with regard to
such costs. If the Company does not consent to the
request for such costs then such costs shall not be
applied against the "estimated cleanup costs" payment
and such costs may be disallowed for coverage under the
policy. Notwithstanding the foregoing, the "named
insured" may take such "emergency action(s)" as
reasonably necessary to prevent or mitigate further
"cleanup costs", provided the "named insured" provides
notice to the Company within ninety-six (96) hours. If
oral notice is provided, the "named insured" agrees to
follow up in writing, as soon as reasonably possible.
b. The "named insured" agrees to provide the Company with
quarterly status reports of the remediation and actual
"cleanup" of each "covered location" beginning with the
quarter period immediately following the Company's
payment of any amount of "estimated cleanup costs" to
the "named insured". The quarterly status reports shall
include but not be limited to: (l) a description of the
"cleanup"; and (2) a description of all costs incurred
up to the date of the report indicating the
corresponding task in detail with reference to the
relevant sections of the Estimated Cleanup Costs Report.
The Company shall review the "estimated cleanup costs"
expended as to whether such costs are allowable and in
accordance with the Estimated Cleanup Costs Report. If
the Company determines that any costs expended for the
"cleanup" at the "covered location" materially differ
from those which are described in the Estimated Cleanup
Costs Report and the Company is thereby prejudiced by
such payment outside the Estimated Cleanup Costs Report,
then the Company shall provide notice, in writing, to
the "named insured" indicating the prejudice, and such
costs may be disallowed from application against the
"estimated cleanup costs" payment. Notwithstanding the
above, the "named insured" shall keep and maintain
records of all "cleanup" payments and make them
available to the Company for review and audit.
c. If at any time the actual "cleanup costs" incurred are
equal to or greater than seventy five percent (75%) of
the "estimated cleanup costs" paid by the Company to the
"named insured" or if at any time the "named insured"
discovers new and/or additional "cleanup costs" which
were not part of the Estimated Cleanup Costs Report or
"estimated cleanup costs" payment, the "named insured"
shall provide the Company notice as soon as reasonably
possible following the "named insured's" awareness of
such costs. If oral notice is provided, the "named
insured" agrees to follow up in writing, as soon as
reasonably possible. Such notice shall include the
information stated above. Further, the "named insured"
agrees to provide notice to the Company, in writing, as
soon as reasonably possible following the "named
insured's" decision not to perform a "cleanup" at the
"covered location", and the "named insured" also agrees
to provide notice to the Company, in writing, as soon as
reasonably possible of the "named insured's" knowledge
of the "borrower's" election to perform a "cleanup" at
the "covered location".
Copyright(C)1999 by Zurich Insurance Company Page 5 of 7
All rights reserved. No part of this document covered by the copyrights hereon
may be reproduced or copied in any form by any means - graphic, electronic, or
mechanical, including photocopies, taping or information storage and retrieval
systems - without written permission of the Zurich Insurance Company.
<PAGE>
IV. SCOPE OF WORK FOR ESTIMATED CLEANUP COSTS
A. ENGAGEMENT:
A Consultant shall be retained to perform the necessary
investigation and subsequent estimation of anticipated environmental
cleanup costs with specific reference to certain property suspected
to be contaminated by a "pollution event".
The Consultant will have access to a recent Phase I Environmental
Site Assessment report on the subject property. Consultant shall, in
its review of the historic data, consider what supplementary
invasive sampling and other additional site work may be required to
complete an Estimated Cleanup Cost Report pursuant to the Scope of
Work for Estimated Cleanup Costs.
B. DEFINITION OF ESTIMATED CLEANUP COSTS INVESTIGATION:
The investigation involves a (I) review, consideration and
quantification of available, recent and/or historic data pertaining
to the environmental character of the subject property, including
database searches, Phase I and II Environmental Site Assessments,
and (2) such additional invasive sampling of air, soil, groundwater,
surface water, waste streams, chemicals, suspected asbestos
containing materials, or other hazardous materials in solid, liquid
or gaseous form as the Consultant determines to be reasonably
necessary in its best professional judgment to quantify and
delineate existing levels of contamination within the property with
respect to the "pollution event" and with reference to and to the
extent required by applicable "governmental authority" for purposes
of the Consultant determining the "estimated cleanup costs" to
"cleanup" the "pollution event".
C. PROPOSALS FOR INVASIVE SAMPLING:
General: The types and locations of materials sampled and the
analytical method employed shall be directly related to the nature
of the suspected contamination or other potential violation of
environmental laws or regulations. The analytical parameters shall
be limited to the types of materials that are reasonably believed to
have been released (e.g., a TCLP metals test is not appropriate when
the only suspected release is related to gasoline). All testing
shall be conducted in accordance with applicable EPA and state
protocols.
In connection with the Investigation, no Phase II investigative work
shall be performed until the "named insured" and the Company have
reviewed a written proposal for the Phase II Environmental Site
Assessment and until the "named insured" and the Company have
approved the same in writing. Any such proposal shall include:
1. A description of the areas or materials to be sampled, which
shall include a short but complete explanation as to why it is
necessary to obtain such samples.
2. A description of the sampling to be performed, which shall
include the proposed depth of sub-surface sampling and a
description of the analytical method to be used (including the
types of substances that would be detected using the proposed
analytical method).
3. A detailed cost breakdown for each type of sample taken and
each type of analysis performed, and any miscellaneous costs
such as travel, report preparation, etc., plus a total cost
figure of the services proposed.
Copyright(C)1999 by Zurich Insurance Company Page 6 of 7
All rights reserved. No part of this document covered by the copyrights hereon
may be reproduced or copied in any form by any means - graphic, electronic, or
mechanical, including photocopies, taping or information storage and retrieval
systems - without written permission of the Zurich Insurance Company.
<PAGE>
4. A time period within which the Phase II Environmental Site
Assessment report can be completed, including a timeline for
mobilization, sampling and analysis.
5. Disclosure of whether the Consultant is obligated to provide
any or all of the analytical testing results to local, state
or federal government agencies.
Additional Testing. If after the Consultant's invasive sampling is
completed, the Consultant reasonably determines that additional
sampling is required in order to properly delineate the
environmental contamination for the purposes of determining the
"estimated cleanup costs", the Consultant should notify the "named
insured" and the Company and prepare for their prior approval a
supplemental proposal for any such additional sampling before
performing such work.
The Estimated Cleanup Costs Report shall include, as applicable, the
following:
1. A brief description of the property on which testing and
sampling took place.
2. A description of the location and type of materials sampled
along with a sketch of the site indicating the sample
locations.
3. An explanation as to why sampling was deemed necessary in
these areas.
4. An explanation of the sampling protocol used and the
analytical parameters to which the sample was subjected.
5. A table setting forth the sample taken, the type of analysis
performed, the detection limit for such analysis, the
analytical results, and the permissible state or federal
standards relating to the materials sampled. Such a table
should clearly convey to the reader the extent to which
detected materials exceed government standards, if at all.
6. Conclusions and Recommendations. The report's conclusions and
recommendations must contain concise recommendations, which
are not ambiguous as to the course of action required by
applicable "governmental authority" to "cleanup" the
identified "pollution event" and "estimated cleanup costs". If
the "estimated cleanup costs" are presented as a "high-low"
dollar range, the difference between the high and low
estimates should not be in excess of twenty percent (20%) of
the lowest cost estimate. Finally, the Consultant should
provide a reasonably detailed description of the methods and
rationales utilized to obtain the "estimated cleanup costs"
set forth in the report.
All other terms and conditions of the Policy shall apply and remain unchanged.
Signed by: /s/ M. Dillon 8/13/99
-------------------------- -------------------
Authorized Representative Date
Copyright(C)1999 by Zurich Insurance Company Page 7 of 7
All rights reserved. No part of this document covered by the copyrights hereon
may be reproduced or copied in any form by any means - graphic, electronic, or
mechanical, including photocopies, taping or information storage and retrieval
systems - without written permission of the Zurich Insurance Company.
<PAGE>
SCHEDULE I
MORTGAGE LOAN SCHEDULE
<PAGE>
<TABLE>
<CAPTION>
SEQUENCE LOAN
NUMBER* NUMBER PROPERTY NAME PROPERTY ADDRESS
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
C1 51113 Indian Hills Apartments 4550 West Sahara Ave.
C2 51384 Club Mira Lago Apartments 1060 Coral Ridge Drive
P3 3055209 Rancho Palisades Apartments 4849 Frankford Road
C4 50372 Gessner Apartments Portfolio 6005, 6425, 6525 South Gessner Road
C5 50389 Sheldon Palms Apartments 8802 Brennan Circle
P6 3102126 Pioneer Ridge Apartments Highway 213 & Meyers Road
C7 51482 South Point Apartments 221 Verot School Road
P8 3102282 SIMA Multifamily Portfolio Various
C9 51047 San Michele Apartments 5800 Lake Mead Blvd.
P10 3008489 American River Commons Apartments 2366 American River Drive
C11 50523 Tenaya Palms Apartments 7413 West Russell Road
P12 3010212 Quail Tree Apartments 7100 W Alexander Rd
C13 51024 L8 - Goldfarb Apartments Various
C14 50822 Woodglen Apartments 1800 E. Aroma Drive
P15 3007648 Saratoga Palms 3850 South Mountain Vista St.
P16 3014594 Walnut Square Apartments Complex 3894-3964 Walnut Avenue, et al
P17 3102233 Crystal Lake Apartments 10500 SE 26th Avenue
P18 3009024 River Park Apartments 2575 West 24th Street
P19 3013216 Warren Coronado Apartments 6230 Indian School Road NE
P20 3047925 Shoreline Plaza Apartments 2500 Dickerson Road
P21 4540332 Gold Belt Multifamily Portfolio Various
C22 50292 Fayette/Vantage Point/Woodside Village Various
P23 3102076 Quail Hill Apartments 12375 Mt. Jefferson Terrace
P24 3040078 Heritage Oaks Apartments 4033 McClain way
P25 1865195 Trailside Apartments 4801 - 24th Avenue NE
P26 3012580 Oak Park Apartments 1325 Massachusetts Avenue
C27 50402 Veranda Apartments 5704 W. Thomas Rd.
C28 50985 Mansions South Apartments 3507 North Service Road
P29 3013273 Warren Inn Apartments 5000 Denton Highway
P30 3016060 Viking Villas Apartments 1500 East Viking Road
P31 3018421 Mulberry Hollow Apartments 3540 S. Swenson Street
C32 51514 Heritage Trace Apartments 3602 Campbell Road
P33 3101144 Barclay Village Apartments 775 Cascade Avenue
P34 3011269 Amberwood Garden Apartments 26100 Gading Road
P35 3016565 Garden Hill Apartments 31 Lassen Way
P36 4544748 Cedar Meadows Apartments 8560 West Peoria Avenue
P37 3015872 Tamarack Pointe Villas 330 West Central Avenue
P38 3021714 Balfour Place Apartments 2300 Harvard Way
P39 3044039 Desert Garden Apartments 1720 West Bonanza Road
P40 1201383 The Park Manor Apartments 29405 - 29499 Rancho California Road
C41 50731 Border City Mills 2 Weaver Street
P42 3014289 Empire Terrace Apartments 12825 60th Lane South
C43 51082 Cinnamon Tree Apartments 1285 N. Freedom Blvd
C44 51290 Fletcher Valley Apartments 8320-8328 Fanita Dr.
P45 3016037 Sierra Vista Square Apartments 920 Sierra Vista Drive
C46 51462 College Terrace Apartments II 155 College Court
C47 51208 Loma Linda Gardens 2925 North Greenfield Rd.
P48 3035128 Warren House Apartments 2269 Eastern Boulevard
C49 51279 Silver Tree Apartments 4336 North 35th Ave.
C50 51032 Westwood Apartments 7842 Everett Ave
C51 51446 Ross Tower Apartments 1602 N. Ross Street
P52 3010428 Pueblo Village Apartments 1768-1989 Butte Street
C53 51496 Greenbrier And Village Oaks Apartments Various
P54 3036670 Gilman Terrace Apartments II 2572 Gilman Drive West
P55 3034980 Warren House East Apartments 2911 East Indian School Road
C56 51490 Scottsdale Serrento Apartments 8145 East Camelback Road
P57 3012309 Saratoga Palms at Diamond Head 522 North Lamb Boulevard
P58 3034733 Warren House/Terrace II Apts. 1900 and 2000 Reservoir Road
P59 3021334 Weddington Apartments 15370 Weddington Street
C60 51054 Spanish Garden Apartments 3029 North Rockwell Ave.
P61 3019882 Juniper Court Apartments 1803 South Juniper Street
C62 51517 Camelot West Apartments 2625 N. Andrews Avenue
C63 51485 Oceana Apartments 13520 Kornblum Avenue
C64 51477 El Caballero Apartments 13724 Chadron Avenue
C65 51461 College Terrace Apartments I 1155 North Sierra Street
C66 50378 Buckhead Gardens Apts 22, 24, & 43 Peachtree Ave. N.E.
P67 3037876 Warren Village Mobile 6427 Airport Blvd
P68 3037868 Warren Inn (Mobile) 6501 Airport Boulevard
C69 51345 Drake Plaza Apartments 3301 - 3325 Olive Street
P70 3014420 The Courtyard Apartments 1111 South San Jose Street
P71 3016698 Maryland Gardens Apartments 4529 West Ocotillo Road
P72 1796796 Upstairs/Downstairs Apartments 4238 & 4542 18th Avenue NE
C73 50401 Colbath Apartments 4528-4536 Colbath
C74 51031 Stonewood Apartments 7510 East 85th Terrace
P75 3034998 Park Thomas Apartments 1819 East Thomas Road
C76 50995 232 Front Street 232 Front Street
P77 3013232 Autumn Woods Apartments 5151 S. Utica Avenue
P78 3036001 Newport 40 4160 124th Avenue S.E.
P79 2092443 2121-2127 Fillmore Street 2121-2127 Fillmore Street
P80 3015682 Regents Apartments 1260 Havenhurst Drive
C81 51463 Fairview Apartments 1205 24th Street Northwest
C82 51100 Mission Manor Apartments 4125 Thompson
C83 51476 Peach Tree Apartments 1150 N. Wilmington Blvd.
C84 51489 Highland Square Apartments 3937-39 & 4007-09 Briggs Ave & 3938-40 & 4008-10 Lewis Ave
C85 51479 Carousel Apartments 2929 Justina Rd.
C86 51505 Casa Del Valle Apartments 349 South Union Road
C87 51270 1346 W. Jarvis Apartments 1346 West Jarvis Ave.
C88 51478 Madison Square Apartments 23035 Madison Street
C89 51486 Kelvin Square Apartments 7248 Kelvin Avenue
C90 51467 Brynwood Apartments 15400 Highway #65 N.E.
C91 51451 Riata Court Apartments 2875 East Sixth Street
C92 51466 Park Place Apartments 201 & 301 17th Avenue N.E.
C93 51464 Countryside Court Apartments 1940-1941 Countryside Drive
C94 51226 Edgewood Apartments 120 5th St. NW
C95 51420 Evergreen Apartments 1337 24th St., NW
C96 51487 Crenshire Villa Apartments 810 Crenshaw Blvd.
C97 51459 Highlander Apartments 801 E. 2nd Street
C98 51441 Village Apartments 6434 East Cave Creek Road
C99 51278 South Hill Village Shopping Center 120-31st Ave. SE
C100 51321 SLJ Realty Portfolio Various
P101 3023470 De Anza Country Shopping Center 7700-7840 & 7720 Limonite Avenue
C102 50233 Summerhill Plaza Shopping Center 7501-7581 West Lake Mead Boulevard
P103 3011459 Downtown Centre 876-894 Marsh St.& 879-899 Higuera St.
P104 1200963 Las Posas Plaza 98 Daily Drive
C105 50791 K-Mart Plaza - Durham, NC 2004 Avondale Drive
C106 51292 Mesa Shores Shopping Center 2154 East Baseline Road
P107 3016292 Bouquet Canyon Plaza 26501-26547 Bouquet Canyon Road
P108 3019775 Home Depot/Parkside Center Lots 1&2 Sierra Excutive Centre Unit 3
C109 51044 University Plaza Shopping Center 3429-3519 University Ave.
C110 51330 Woodlawn Shopping Center 8700 Richmond Highway
P111 3011889 Sante Fe Springs Promenade 11442-11570 E. Telegraph Road
P112 3008539 H. K. Valley Shopping Center 17607-17643 Sherman Way
P113 3021508 Best Buy Plaza 3900 Tyler Street
C114 51163 Town & Country Plaza 13714-13820 SW 152nd St.
C115 51162 Miller West Plaza 14702-14792 SW 56th St.
C116 51171 Third Street Plaza Shopping Center 1170 Third St. South
C117 50976 Pine Lake Plaza 10400 Griffin Road
C118 51498 Glenwood Crossings Shopping Center 2701 18th Street
C119 50991 Monterey Plaza Shopping Center 201 Southwest Monterey Rd.
C120 50885 Paducah Towne Center 3200 Irvin Cobb Drive
C121 50311 University Square Shopping Center 3136 E. Tenth Street
C122 50154 Dolphin Plaza Shopping Center 17161-17239 NW 27th Ave.
C123 51144 Tri State # 1 & # 3 Various
P124 4549193 Barkley Village 2915-2950 Newmarket Street
C125 50916 Royal Oaks of Bloomingdale 3210 Lithia Pinecrest Rd
P126 1201300 McGrath Court Retail Center 7051-7095 Clairemont Mesa Boulevard
C127 51306 Best Buy Building 19929 Rinaldi Street
P128 3021920 Foothill Ranch Marketplace 26741, 26761, 26771, 26781 & 26795 Portola Parkway
P129 3041399 Ironwood Square - Phase III 202-206 Ironwood Drive
C130 51437 Shops At England Run 736 Warrenton Road (Highway 17)
C131 51484 Fairfield Square Shopping Center 2831 South Main Street
P132 3009370 Greentree Village Shopping Center 1800 South Milton Rd.
C133 51449 Perimeter Oaks Shopping Center 3262-3274 Inner Perimeter Drive
P134 3009040 Willow Glen Plaza 1120-1130 Bird Avenue
C135 51327 Gower-Gulch Center 6100 - 6134 West Sunset Blvd
P136 3054277 SRO Center 3904, 3908, 3920 Meridian Street
C137 51052 Tukwila Park Shopping Center 640-690 Strander Blvd.
C138 51516 Rite Aid-Alpine 1661 Alpine Blvd.
C139 51216 San Miguel Plaza 3003 S. St. Francis Drive at Zia Road
C140 51335 Kids "R" Us 2745 NE 193rd Street
C141 51450 Brea Village Shopping Center 1001-1039 E. Imperial Highway
C142 51002 Spring Hope Commons Shopping Center 603 E. Nash St.
C143 51005 Warren Corners Shopping Center U.S.Highway 158
C144 51508 500 State Street 500 - 510 State Street
C145 51507 Arts Industria Center 415 S. Cedros Ave.
C146 51494 Harbor Place 602-666 South Harbor Blvd.
P147 3046620 Victory Plaza Shopping Center 13003-13075 Victory Blvd
P148 3033792 Las Vegas Discount Golf & Tennis 4211 Paradise Road
C149 51389 Towne Point Shopping Center 3921 Twin Pines Rd
C150 51510 NationsBank Branch - Ft. Lauderdale 1745 E. Sunrise Blvd.
C151 51333 OfficeMax Building - Phoenix, AZ 9th Street and Bell Road
C152 50864 Hardin Village Shopping Center 2960 Eldorado Parkway
P153 3022746 Barnes & Noble Booksellers 1400 Biddle Road
P154 1201185 Dollinger Central 201-11 Central Avenue
P155 4546966 Columbia Square IV Shopping Center 13215 SE Mill Plain Boulevard
P156 1794569 Salmon Creek Shopping Center 12919 N.E. Highway 99
P157 3013471 Petrini's Rheem Valley Shopping Center 594 Moraga Road
P158 3041589 Mission Village Center 32151 Camino Capistrano
C159 51140 Maple Wood Plaza 850 Lake Ave.
P160 3056132 Crossroads at Hacienda Shopping Center 4747 Hopyard Road
P161 3056140 Crossroads at Hacienda Shopping Center 4501 Hopyard Road
P162 3051141 Barnsdall Square Shopping Center 1607-1637 N. Vermont Ave. & 4730-4738 Hollywood Blvd.
P163 3000932 Wild West Shopping Center 115-159 West Shaw Avenue
C164 51276 Western Dental Plaza 1124 West Olive Ave
C165 51475 Northome Shopping Center 1550 West Larpenteur Avenue
C166 51492 KMS Retail Center 550 West Bell Road
C167 51361 Harbor Plaza Shopping Center 11315 South Figueroa Street
C168 51370 Harding Atlantic Shopping Center 6151-6191 Atlantic Ave.
C169 51439 Towne Square Shopping Center 901 N. Pecos Rd.
C170 51469 Arlington Square 3243-3297 Arlington Avenue
C171 51483 Sag Harbor Shopping Cove 64-82 Main Street
C172 51468 Victoria Village Shopping Center 7270 Victoria Park Lane
C173 51432 Prince & Fairview Shopping Center 901-935 West Prince Rd
C174 51452 El Camino Retail 1615 North El Camino Real
C175 51433 Clothestime Retail Building 630 Irving Street
P176 3011970 Crockett Industrial Portfolio Various
C177 50919 1/2 Price Distribution Center 9202 F Street
P178 3000908 Charter Business Park 3641-3851 Charter Park Drive
C179 51187 Tyco Warehouse 750 Central Avenue
P180 3038361 Lakepoint/Ignacio Business Park 90 and 105 Digital Drive
P181 3021458 San Tomas Business Centre 2060 Walsh Avenue
C182 50944 7777 West Side Ave. 7777 West Side Ave.
P183 3033032 Zidell Valve Corporation 10600 Corporate Drive
C184 51186 Nokia Office Warehouse Building 975 West NASA Blvd.
P185 2088680 Amdahl Building 415 Oakmead Parkway
P186 3032760 Bancroft Building 0690 S.W. Bancroft Street
P187 3054947 Condor Pacific Industries 31829 La Tienda Drive
P188 3000890 Jersey Business Park 10700 Jersey Boulevard
P189 3023538 Vista Paints 2000-2040 E. Orangethorpe Avenue
P190 3006681 Trojan Battery Company 12380 Clark Street
C191 51448 Santoli Commerce Center Various
P192 3011426 4240 Hollis Street 4240 Hollis Street
P193 3032406 Airport Office Park 2000 South Frontage Road
P194 3011921 Fabrica International Building 2801 Pullman Street
P195 4540878 Performance Radiator 2705 & 2619 South Tacoma Way & 3016 South Fife St.
P196 2093268 Valley North Business Park 2401,2501 W. Behrend Drive
C197 51392 325 Exterior Street 325 Exterior Street
P198 3057932 Northwestern Polytechnic University 105-119 Fourier Avenue
P199 1204346 Warner Fairview Business Park 2300 - 2320 S. Fairview, et al.
P200 3009883 Industry West Industrial Park 200-272 South 5th Avenue
C201 51326 Hampton Commerce Center 1323 W. Pembroke Ave. and 5, 6 & 10 Lockwood Drive
P202 3025343 4880 West Rosecrans Avenue 4880 West Rosecrans Avenue
P203 3058575 Ledtronics 23105 Kashiwa Court
P204 3034873 Hofmann Industrial Portfolio Various
P205 3014958 Avioan Business Center 1865-1963 Del Amo Boulevard
P206 1201136 Valencia Industrial Center 25371-95 Rye Canyon Road
C207 51194 Van Nuys Airport Business Center 16735-45 Saticoy St.
P208 3011632 Seaview Business Park 1010-1060 Calle Cordillera
C209 51247 Technology Drive Industrial 170 Technology Dr.
C210 51280 1400 Dell Avenue Building 1400 Dell Ave.
P211 3032786 Tromley Industrial Building 12505 S.W. Herman Road
C212 51337 2500-2520 Park Central 2500-2520 Park Central Boulevard
P213 4538179 Coeur d'Alenes Co. & Stock Steel Metal Fabrication Bldg.East 3900 Broadway Avenue
P214 3021284 250 W. Artesia Boulevard 250 W. Artesia Boulevard
P215 2034692 1-31 North Salsipuedes Street 1-31 North Salsipuedes Street
P216 3007127 14402 Franklin Avenue 14402 Franklin Avenue
P217 4538229 Puget Sound Tire Building 402 & 412 Lund Road
P218 3039914 Span-O-Matic, Inc. 825 Columbia Street
P219 3009974 Watt-Eighty Business Park 3325-3437 Myrtle Avenue
P220 4538864 Slope Indicator Company 3450 Monte Villa Parkway
P221 1795863 Newport Shores Office/Warehouse 3220, 3240, 3260 118th Avenue S.E.
P222 1201326 6231, 6241 Yarrow Drive 6231, 6241 Yarrow Drive
P223 3006491 25620 Rye Canyon Road 25620 Rye Canyon Road
P224 3039450 Ross Industrial Park 1050 N.W. Maryland Avenue
P225 3074754 Chicago Avenue Business Center 2023 & 2025 Chicago Avenue
P226 3101367 Montgomery Ward Distribution Warehouse 5905 N Marine Drive
C227 51193 Walmar Industrial Center 5600-5760 Ayala Avenue
P228 3001211 View Engineering, Inc. 1650 - 1720 Voyager Drive
P229 4547279 Freshmark Foods Building 22613 76th Avenue South
C230 51454 Airpark Trade Center 15023 N 73rd St.
C231 51470 Raintree Commerce Center 8150 E. Raintree Dr.
C232 51314 Huntwood Ave. Light Industrial 25377 & 25385 Huntwood Ave.
C233 51506 North American Cable Building 227 S. River Street
C234 51438 One Industrial Building 1 Industrial Street
C235 51503 Bank of America Regional Headquarters 10850 White Rock Rd.
C236 51332 101 Ygnacio Plaza 101 Ygnacio Valley Road
C237 50987 Three Palms Center 2141-2151 Alternate A1A
P238 3012937 Waterfront Plaza 500 Airport Boulevard
P239 3026820 Water Court Office Buildings 850-920 Hampshire Road
P240 3054939 Executive Park 6753-6773 West Charleston Boulevard
P241 1202811 300 Hamilton Building 300 Hamilton Avenue
C242 51040 Journal Square Plaza I 1 Journal Square Plaza
P243 4539961 Lakes Medical Plaza 11311 Bridgeport Way SW
P244 1203637 High Bluff - Del Mar 12555 High Bluff Drive
P245 4547972 Percival Plaza 606 & 626 Columbia Street, & 601 N. Capital Way
P246 1794478 Richland Medical Center & Pharmacy NE Corner of Swift Blvd & Goethels Ave
P247 3007754 12700 Ventura Boulevard 12700 Ventura Boulevard
C248 51019 2002 Avenue U 2002 Avenue U
P249 3038502 American Radio Systems Building 1071 West Shaw Avenue
C250 51037 Double Eagle Office Building 101 East Town Place
P251 3010717 Riverpark 6122-6166 West Sahara Avenue
C252 51168 Village Square Office Building 9510 West Sahara Ave
C253 50903 Grove Office Plaza 515 Grove St.
C254 51493 Stanford Coastside Medical Clinic 225 South Cabrillo Highway
P255 3046208 3330 West Desert Inn Road 3330 West Desert Inn Road
C256 50826 Golf Course Plaza 11480 Sunset Hills Road
P257 3001096 2220 Lynn Road 2220 Lynn Road
P258 2091932 Century Center Office Building 26522 La Alameda
P259 3049228 Alta Mesa Professional Center #333 333 El Dorado Street
C260 50963 16 East 41st Street Office Building 16 East 41st St.
C261 51222 Greenfield Road Office Building 1420 North Greenfield Rd
P262 3007713 San Clemente Professional Center 647 Camino De Los Mares
P263 1794353 The Doyle Building 119 Pine Street/1527 Second Avenue
P264 2053130 Courthouse Square 1000-1050 Fourth Street
P265 4544987 Colorado Professional Park 552 & 554 North Colorado Street
P266 3043346 881 Fremont Ave. 881 Fremont Ave.
P267 3022530 300 University Avenue 300 University Avenue
C268 51214 Byrd Building 319 First Ave N
C269 50972 Duke Medical Office 2609 North Duke Street
C270 51229 5240 North 16th Street Building 5240 North 16th Street
C271 51488 Scripps Crest Building 9845 Erma Road
C272 51474 Clocktower Center 2195 Colorado Highway 83
C273 51369 East Mississippi Professional Office Building 11275 E. Mississippi Ave.
C274 51000 U.S. Fish and Wildlife Center 6669 Short Lane
C275 51272 Bethany Medical Plaza 2200 West Bethany Home Road
P276 4547840 The Weatherly Inn 6016 N. Highland Parkway
C277 50330 Powell Valley Assisted Living Center 4001 SE 182nd Avenue
C278 51501 Hamilton Plaza Nursing Home 56 Hamilton Avenue
C279 51500 Iliff Rehab and Nursing Center 8000 Iliff Drive
P280 3101599 Olympics West Retirement Center 929 Trosper Road
P281 4545786 Merrill Gardens at Northgate 11501 15th Avenue NE
C282 50946 Chateau Marymoor Retirement & Assisted Living Community 4585 West Sammamish Pkwy, NE
C283 50803 Fairfield Manor Nursing Home 5303 Bermuda Road
P284 3048741 Hearthstone Cottage of Ellensburg 802 Mountian View Avenue
P285 1865559 Carson Oaks 6725 Inglewood Avenue
P286 4544128 Life Care Center of Escondido 1980 Felicita Road
C287 51499 Park Manor Nursing Home 23 Park Place
P288 3032034 Highline Convalescent Center 609 Highline Drive
P289 3009594 Valley Village Mobile Home Park 6401 Country Club Drive
P290 3012291 Cordovan Mobile Home Estates 10035 Mills Station Road
P291 3022969 Mesa Village Mobile Home Park 2701 E.Allred Avenue
P292 3009545 Village Green Mobile Home Park 2902 South 84th Street
P293 3009586 Orcutt Ranch Mobile Home Park 295 N. Broadway
P294 3009636 Town & Country Mobile Home Park 1600 East Clark Avenue
P295 1796705 Meadowbrook Mobile Home Estate 7610 West Nob Hill Boulevard
P296 3025335 Blue Sky Mobile Home Park 4800 Ocotillo Road
P297 3102456 Springbrook Estates Manufactured Home Park Phase I 1000 Springbrook Road
P298 3043486 College Place Mobile Home Park 31600 126th Avenue SE
P299 3015435 Silverado Estates 2900 West Superstition Boulevard
P300 3012705 Sierra Vista Mobile Home Park 825 East Grangeville Boulevard
C301 51418 Deep Valley Mobile Home Park 2101 South State Street
P302 3015526 E-Z Storage Pico 11470 Tennessee Avenue
P303 3015500 E-Z Storage Desoto 9420 De Soto Ave.
P304 3015518 E-Z Storage Van Nuys 5823 Peach Ave.
P305 3000239 America's Best Self Storage 380 Crenshaw Boulevard
P306 3009263 Save-Most Self Storage 23772 Via Fabricante
C307 51411 Pantego American Storage & Arkansas Lane Self Storage Various
P308 3012887 Aim All Storage 25093 Bay Ave.
C309 51427 Stor-A-Lot 1441N. Baxter Street
C310 51017 A-Safe Mini Storage 4249 Miller Road
P311 3021862 Castro Valley Storage 2489 Grove Way
C312 51083 Plaza 303 - All Storage Self-Storage 425 Pioneer Parkway
P313 8317463 Broadway Public Storage II 3501 South Lindsay Street
P314 3019114 Buffalo Mini-Storage 3925 S. Buffalo Drive
C315 51206 Discount Storage 9620 I Avenue
C316 51252 American Self Storage 2137 Steel Rd
C317 51364 Industrial Blvd Self-Storage 27911 Industrial Boulevard
C318 51440 LaSoto Business Park 1920 N. Beckley Rd.
C319 51416 DeSoto Preferred Storage 601 South Beckley Avenue
P320 3024635 Folsom Lake Ford 12755 Folsom Boulevard
P321 3103405 Act III Theatre 200 N. 26th Avenue
P322 1867084 Oskoui Health Club Portfolio Various
P323 3024643 Folsom Lake Toyota 12747 Folsom Boulevard
P324 3040482 Bellevue Auto Center 620 116th Avenue NE
P325 3022993 L.A. Fitness Sports Club 5536 West Bell Road
P326 1792761 University Volkswagon 4724 Roosevelt Way N.E.
P327 3011822 Las Vegas Athletic Club 5200 West Sahara Avenue
P328 3005691 Lynnwood Auto Center 21609 - 21619 Highway 99 North
P329 4540613 Inn at the Market 86 Pine Street
P330 2092120 Best Western Anaheim Inn 1630 S. Harbor Boulevard
P331 3006723 670 West 17th Street 670 West 17th Street
</TABLE>
<TABLE>
<CAPTION>
SEQUENCE
NUMBER* CITY STATE ZIP CODE MORTGAGE RATE (%) AMORTIZATION BASIS ORIGINAL BALANCE CUT-OFF BALANCE
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
C1 Las Vegas NV 89102 0.07251 ACT/360 $23,200,000.00 $23,080,381.78
C2 Coral Springs FL 33071 0.07251 ACT/360 $20,840,000.00 $20,732,549.84
P3 Dallas TX 75287 0.0672 30/360 $26,300,000.00 $25,993,740.68
C4 Houston TX 77036 0.0721 ACT/360 $13,385,000.00 $13,307,172.37
C5 Tampa FL 33615 0.0722 ACT/360 $12,700,000.00 $12,510,252.52
P6 Oregon City OR 97034 0.08 30/360 $11,737,500.00 $11,315,163.28
C7 Lafayette LA 70508 0.0684 ACT/360 $10,200,000.00 $10,162,235.42
P8 Various OR Various 0.0797 30/360 $ 9,800,000.00 $ 9,286,599.95
C9 Las Vegas NV 89108 0.069 ACT/360 $ 9,300,000.00 $ 9,227,500.53
P10 Sacramento CA 95825 0.0825 30/360 $ 8,500,000.00 $ 8,132,034.73
C11 Las Vegas NV 89113 0.0747 ACT/360 $ 6,450,000.00 $ 6,362,960.44
P12 Las Vegas NV 89129 0.0975 ACT/360 $ 6,200,000.00 $ 5,903,760.01
C13 Various IL Various 0.0657 ACT/360 $ 5,192,523.00 $ 5,148,929.72
C14 West Covina CA 91791 0.0698 ACT/360 $ 5,175,000.00 $ 5,115,772.66
P15 Las Vegas NV 89121 0.0825 30/360 $ 5,200,000.00 $ 5,007,583.49
P16 Simi Valley CA 93063 0.0805 30/360 $ 5,000,000.00 $ 4,852,520.74
P17 Milwaukie OR 97222 0.0755 30/360 $ 5,000,000.00 $ 4,714,406.68
P18 Yuma AZ 85364 0.0725 30/360 $ 4,700,000.00 $ 4,472,669.95
P19 Albuquerque NM 87110 0.0799 30/360 $ 4,700,000.00 $ 4,324,792.95
P20 Reno NV 89503 0.07625 30/360 $ 4,300,000.00 $ 4,214,043.09
P21 Various AK Various 0.08625 30/360 $ 4,350,000.00 $ 4,170,255.77
C22 Various IN Various 0.0774 ACT/360 $ 4,166,653.44 $ 4,140,148.22
P23 Lake Oswego OR 97035 0.079 30/360 $ 4,350,000.00 $ 4,094,902.39
P24 Carmichael CA 95608 0.0788 30/360 $ 4,125,000.00 $ 4,061,367.18
P25 Seattle WA 98105 0.0725 30/360 $ 4,300,000.00 $ 3,955,830.28
P26 Riverside CA 92507 0.0741 30/360 $ 4,000,000.00 $ 3,851,665.44
C27 Phoenix AZ 85031 0.0735 ACT/360 $ 3,560,000.00 $ 3,508,377.45
C28 Moore OK 73160 0.0735 ACT/360 $ 3,500,000.00 $ 3,470,466.65
P29 Haltom City TX 76117 0.0765 30/360 $ 3,791,800.00 $ 3,469,215.62
P30 Las Vegas NV 89119 0.07875 30/360 $ 3,500,000.00 $ 3,390,135.33
P31 Las Vegas NV 89109 0.0837 30/360 $ 3,500,000.00 $ 3,363,197.36
C32 Newport News VA 23602 0.07345 ACT/360 $ 3,370,000.00 $ 3,360,967.77
P33 Oregon City OR 97045 0.08 30/360 $ 3,700,000.00 $ 3,341,959.61
P34 Hayward CA 94544 0.07375 30/360 $ 3,470,000.00 $ 3,337,063.48
P35 Watsonville CA 95076 0.085 30/360 $ 3,400,000.00 $ 3,313,219.68
P36 Peoria AZ 85345 0.085 30/360 $ 3,300,000.00 $ 3,185,608.19
P37 Brea CA 92621 0.0875 30/360 $ 3,037,500.00 $ 2,959,955.76
P38 Reno NV 89502 0.0849 30/360 $ 3,000,000.00 $ 2,828,632.82
P39 Las Vegas NV 89106 0.0775 30/360 $ 2,870,000.00 $ 2,806,691.20
P40 Temecula CA 92591 0.09125 30/360 $ 6,000,000.00 $ 2,771,390.27
C41 Fall River MA 02720 0.0701 ACT/360 $ 2,800,000.00 $ 2,765,675.21
P42 Seattle WA 98178 0.08 30/360 $ 2,750,000.00 $ 2,661,109.31
C43 Provo UT 84604 0.0685 ACT/360 $ 2,618,000.00 $ 2,567,513.55
C44 Santee CA 92071 0.0643 ACT/360 $ 2,520,000.00 $ 2,498,179.55
P45 Las Vegas NV 89109 0.08625 30/360 $ 2,600,000.00 $ 2,491,418.76
C46 Reno NV 89503 0.0717 ACT/360 $ 2,490,000.00 $ 2,478,460.41
C47 Phoenix AZ 85016 0.06836 ACT/360 $ 2,475,000.00 $ 2,451,472.80
P48 Montgomery AL 36101 0.0794 ACT/360 $ 2,500,000.00 $ 2,384,750.98
C49 Phoenix AZ 85017 0.06348 ACT/360 $ 2,400,000.00 $ 2,378,842.06
C50 Kansas City KS 66112 0.07 ACT/360 $ 2,350,000.00 $ 2,330,050.43
C51 Santa Ana CA 92706 0.0725 ACT/360 $ 2,300,000.00 $ 2,281,475.43
P52 Wendover NV 89883 0.075 30/360 $ 2,495,541.00 $ 2,263,952.55
C53 Various TX Various 0.07415 ACT/360 $ 2,250,000.00 $ 2,238,536.88
P54 Seattle WA 98102 0.08875 ACT/360 $ 2,350,000.00 $ 2,198,599.23
P55 Phoenix AZ 85016 0.0794 ACT/360 $ 2,200,000.00 $ 2,097,870.93
C56 Scottsdale AZ 85251 0.06744 ACT/360 $ 2,000,000.00 $ 1,992,417.59
P57 Las Vegas NV 89110 0.07625 30/360 $ 2,050,000.00 $ 1,937,155.96
P58 Little Rock AR 72227 0.0794 ACT/360 $ 2,000,000.00 $ 1,907,801.44
P59 Los Angeles CA 91411 0.07875 30/360 $ 1,925,000.00 $ 1,877,788.57
C60 Bethany OK 73008 0.0728 ACT/360 $ 1,900,000.00 $ 1,876,129.83
P61 Nampa ID 83686 0.0775 30/360 $ 1,930,000.00 $ 1,872,023.05
C62 Wilton Manors FL 33311 0.0771 ACT/360 $ 1,875,000.00 $ 1,871,779.85
C63 Hawthorne CA 90250 0.0694 ACT/360 $ 1,880,000.00 $ 1,870,858.47
C64 Hawthorne CA 90250 0.0707 ACT/360 $ 1,864,000.00 $ 1,855,178.58
C65 Reno NV 89503 0.0717 ACT/360 $ 1,840,000.00 $ 1,831,472.75
C66 Atlanta GA 30305 0.0758 ACT/360 $ 1,840,000.00 $ 1,814,713.57
P67 Mobile AL 36608 0.0803 30/360 $ 1,900,000.00 $ 1,812,582.46
P68 Mobile AL 36608 0.0803 30/360 $ 1,900,000.00 $ 1,812,582.46
C69 St. Louis MO 63103 0.07525 ACT/360 $ 1,800,000.00 $ 1,792,262.62
P70 Mesa AZ 85202 0.08 30/360 $ 1,884,000.00 $ 1,790,078.76
P71 Glendale AZ 85301 0.085 30/360 $ 1,850,000.00 $ 1,772,149.60
P72 Seattle WA 98105 0.085 30/360 $ 1,890,000.00 $ 1,742,367.15
C73 Sherman Oaks CA 91423 0.0705 ACT/360 $ 1,750,000.00 $ 1,722,824.12
C74 Kansas City MO 64138 0.07 ACT/360 $ 1,650,000.00 $ 1,635,992.88
P75 Phoenix AZ 85016 0.0794 ACT/360 $ 1,700,000.00 $ 1,621,082.12
C76 Manhattan NY 10038 0.0671 ACT/360 $ 1,600,000.00 $ 1,584,351.23
P77 Tulsa OK 74105 0.0765 30/360 $ 1,711,300.00 $ 1,565,712.65
P78 Bellevue WA 98006 0.084 30/360 $ 1,260,000.00 $ 1,561,384.92
P79 San Francisco CA 94115 0.09 30/360 $ 1,650,000.00 $ 1,536,691.00
P80 W.Hollywood CA 90046 0.07875 30/360 $ 1,600,000.00 $ 1,530,235.74
C81 Willmar MN 56201 0.08085 ACT/360 $ 1,476,000.00 $ 1,469,712.01
C82 Kansas City KS 66103 0.0685 ACT/360 $ 1,460,000.00 $ 1,442,197.39
C83 Wilmington CA 90744 0.0697 ACT/360 $ 1,350,000.00 $ 1,343,476.43
C84 Erie PA 16504 0.08305 ACT/360 $ 1,200,000.00 $ 1,197,005.30
C85 Jacksonville FL 32277 0.07875 ACT/360 $ 1,175,000.00 $ 1,170,316.26
C86 Manteca CA 95337 0.078 ACT/360 $ 1,035,000.00 $ 1,032,529.87
C87 Chicago IL 60626 0.0684 ACT/360 $ 1,000,000.00 $ 991,201.42
C88 Torrance CA 90505 0.06945 ACT/360 $ 900,000.00 $ 895,628.26
C89 Los Angeles CA 91306 0.0684 ACT/360 $ 900,000.00 $ 895,532.03
C90 Ham Lake MN 55304 0.08135 ACT/360 $ 800,000.00 $ 794,483.21
C91 Tucson AZ 85716 0.07775 ACT/360 $ 770,000.00 $ 766,474.09
C92 Waseca MN 56093 0.0826 ACT/360 $ 760,000.00 $ 756,893.79
C93 Benson MN 56215 0.0826 ACT/360 $ 672,000.00 $ 667,468.87
C94 Cohasset MN 55721 0.07442 ACT/360 $ 650,000.00 $ 645,012.68
C95 Willmar MN 56201 0.08075 ACT/360 $ 615,000.00 $ 610,713.13
C96 Los Angeles CA 90005 0.07585 ACT/360 $ 600,000.00 $ 598,486.38
C97 Litchfield MN 55355 0.0826 ACT/360 $ 552,000.00 $ 548,278.04
C98 Cave Creek AZ 85331 0.0765 ACT/360 $ 500,000.00 $ 489,348.30
C99 Puyallup WA 98374 0.06697 ACT/360 $12,750,000.00 $12,645,946.43
C100 Various NY Various 0.07515 ACT/360 $12,000,000.00 $11,919,244.28
P101 Riverside CA 92509 0.0798 ACT/360 $12,000,000.00 $11,446,342.32
C102 Las Vegas NV 89106 0.0794 ACT/360 $11,500,000.00 $11,361,003.83
P103 San Luis Obispo CA 93401 0.075 30/360 $11,500,000.00 $10,855,595.15
P104 Camarillo CA 93010 0.0904 30/360 $12,000,000.00 $10,733,180.16
C105 Durham NC 27704 0.072 ACT/360 $ 9,800,000.00 $ 9,693,512.14
C106 Mesa AZ 85204 0.07 ACT/360 $ 8,588,000.00 $ 8,522,561.93
P107 Santa Carita CA 91355 0.0859 30/360 $ 8,360,000.00 $ 8,002,411.25
P108 Reno NV 89502 0.0745 ACT/360 $ 8,187,568.00 $ 7,641,273.94
C109 Peoria IL 61604 0.0672 ACT/360 $ 7,300,000.00 $ 7,234,040.31
C110 Alexandria VA 22309 0.075 ACT/360 $ 6,575,000.00 $ 6,546,585.76
P111 Santa Fe Springs CA 90670 0.08375 30/360 $ 6,720,000.00 $ 6,376,604.86
P112 Reseda CA 91406 0.08875 30/360 $ 6,200,000.00 $ 5,876,054.67
P113 Riverside CA 92504 0.09125 30/360 $ 6,200,000.00 $ 5,860,865.61
C114 Miami FL 33177 0.07275 ACT/360 $ 5,500,000.00 $ 5,429,429.96
C115 Miami FL 33185 0.07275 ACT/360 $ 5,300,000.00 $ 5,231,996.11
C116 Naples FL 34102 0.0725 ACT/360 $ 5,000,000.00 $ 4,967,099.65
C117 Cooper City FL 33328 0.0669 ACT/360 $ 5,000,000.00 $ 4,959,130.67
C118 Kenosha WI 53140 0.0775 ACT/360 $ 4,827,000.00 $ 4,815,329.05
C119 Stuart FL 34994 0.0716 ACT/360 $ 4,500,000.00 $ 4,457,415.71
C120 Paducah KY 42003 0.0714 ACT/360 $ 4,450,000.00 $ 4,417,168.63
C121 Greenville NC 27858 0.0778 ACT/360 $ 4,381,403.34 $ 4,357,456.30
C122 Miami FL 33056 0.0814 ACT/360 $ 4,415,400.00 $ 4,356,929.11
C123 Various TX Various 0.0705 ACT/360 $ 4,250,000.00 $ 4,224,363.45
P124 Bellingham WA 98226 0.08375 30/360 $ 4,200,000.00 $ 4,139,130.98
C125 Brandon FL 33511 0.0692 ACT/360 $ 4,160,000.00 $ 4,118,347.30
P126 San Diego CA 92111 0.1025 30/360 $ 4,900,000.00 $ 3,999,400.59
C127 Northridge CA 91326 0.06875 ACT/360 $ 3,915,000.00 $ 3,893,074.23
P128 Foothill Ranch CA 92610 0.08575 30/360 $ 4,300,000.00 $ 3,862,445.81
P129 Coeur D'Alene ID 83814 0.08 30/360 $ 3,600,000.00 $ 3,523,595.00
C130 Fredericksburg VA 22406 0.0725 ACT/360 $ 3,525,000.00 $ 3,508,936.67
C131 High Point NC 27263 0.0776 ACT/360 $ 3,400,000.00 $ 3,386,104.89
P132 Flagstaff AZ 86001 0.08625 30/360 $ 3,300,000.00 $ 3,125,600.16
C133 Valdosta GA 30320 0.07875 ACT/360 $ 3,000,000.00 $ 2,986,576.54
P134 San Jose CA 95125 0.085 30/360 $ 3,150,000.00 $ 2,980,489.38
C135 Los Angeles CA 90028 0.07 ACT/360 $ 3,000,000.00 $ 2,979,118.61
P136 Bellingham WA 98226 0.0743 30/360 $ 3,000,000.00 $ 2,960,758.63
C137 Tukwila WA 98188 0.0715 ACT/360 $ 2,950,000.00 $ 2,912,089.17
C138 Alpine CA 91903 0.07701 ACT/360 $ 2,800,000.00 $ 2,793,143.59
C139 Santa Fe NM 87505 0.07223 ACT/360 $ 2,800,000.00 $ 2,775,655.89
C140 Aventura FL 33180 0.0725 ACT/360 $ 2,775,000.00 $ 2,731,406.05
C141 Brea CA 92821 0.07875 ACT/360 $ 2,700,000.00 $ 2,687,918.93
C142 Spring Hope NC 27882 0.0667 ACT/360 $ 2,700,000.00 $ 2,662,325.73
C143 Warrenton NC 27589 0.0677 ACT/360 $ 2,550,000.00 $ 2,515,017.63
C144 Santa Barbara CA 93101 0.0762 ACT/360 $ 2,473,500.00 $ 2,469,142.79
C145 Solana Beach CA 92075 0.0767 ACT/360 $ 2,469,000.00 $ 2,461,789.47
C146 Santa Ana CA 92704 0.0766 ACT/360 $ 2,300,000.00 $ 2,293,114.03
P147 N. Hollywood CA 91606 0.0825 30/360 $ 2,300,000.00 $ 2,260,872.04
P148 Las Vegas NV 89102 0.0875 30/360 $ 2,300,000.00 $ 2,241,588.14
C149 Portsmouth VA 23703 0.0792 ACT/360 $ 2,250,000.00 $ 2,240,037.16
C150 Ft. Lauderdale FL 33304 0.075 ACT/360 $ 2,240,000.00 $ 2,229,297.32
C151 Phoenix AZ 85022 0.07125 ACT/360 $ 2,137,500.00 $ 2,126,167.02
C152 McKinney TX 75070 0.0722 ACT/360 $ 2,135,000.00 $ 2,116,424.55
P153 Medford OR 77504 0.0878 30/360 $ 2,275,000.00 $ 2,070,110.09
P154 Glendale CA 91203 0.095 30/360 $ 2,100,000.00 $ 1,971,095.88
P155 Vancouver WA 98684 0.085 30/360 $ 2,060,000.00 $ 1,966,567.09
P156 Vancouver WA 98665 0.085 30/360 $ 2,000,000.00 $ 1,828,335.03
P157 Moraga CA 94556 0.085 30/360 $ 1,875,000.00 $ 1,788,919.85
P158 San Juan Capistrano CA 92807 0.088 30/360 $ 1,866,000.00 $ 1,764,038.19
C159 Rochester NY 14613 0.074 ACT/360 $ 1,725,000.00 $ 1,703,218.28
P160 Pleasanton CA 94588 0.0722 30/360 $ 1,750,000.00 $ 1,698,590.11
P161 Pleasanton CA 94588 0.0722 30/360 $ 1,750,000.00 $ 1,698,590.11
P162 Hollywood CA 90027 0.08625 ACT/360 $ 1,750,000.00 $ 1,671,963.37
P163 Clovis CA 93612 0.0875 30/360 $ 1,850,000.00 $ 1,662,999.26
C164 Merced CA 95340 0.06891 ACT/360 $ 1,627,500.00 $ 1,614,786.63
C165 Falco Heights MN 55113 0.08 ACT/360 $ 1,540,000.00 $ 1,530,450.17
C166 Phoenix AZ 85023 0.079 ACT/360 $ 1,494,800.00 $ 1,489,005.69
C167 Los Angeles CA 90061 0.07875 ACT/360 $ 1,045,000.00 $ 1,039,052.05
C168 Long Beach CA 90805 0.07875 ACT/360 $ 965,000.00 $ 959,507.42
C169 Las Vegas NV 89101 0.08 ACT/360 $ 950,000.00 $ 938,903.05
C170 Riverside CA 92506 0.0799 ACT/360 $ 931,000.00 $ 926,944.36
C171 Sag Harbor NY 11963 0.08 ACT/360 $ 834,360.00 $ 829,185.95
C172 Rancho Cucamonga CA 91739 0.0824 ACT/360 $ 805,000.00 $ 801,694.13
C173 Tucson AZ 85705 0.08 ACT/360 $ 610,000.00 $ 597,679.62
C174 San Clemente CA 92672 0.07875 ACT/360 $ 550,000.00 $ 546,027.39
C175 San Francisco CA 94122 0.0815 ACT/360 $ 320,000.00 $ 318,065.81
P176 Various CA Various 0.08 30/360 $ 8,500,000.00 $ 8,044,733.02
C177 Omaha NE 68127 0.0747 ACT/360 $ 6,750,000.00 $ 6,661,199.62
P178 San Jose CA 95136 0.1018 30/360 $ 6,000,000.00 $ 5,694,291.42
C179 University Park IL 60466 0.07316 ACT/360 $ 5,430,000.00 $ 5,402,406.08
P180 Novato CA 94949 0.07875 30/360 $ 5,200,000.00 $ 4,721,830.72
P181 Santa Clara CA 94050 0.08625 30/360 $ 4,700,000.00 $ 4,544,169.83
C182 North Bergen NJ 07047 0.0726 ACT/360 $ 4,550,000.00 $ 4,487,067.45
P183 Stafford TX 77477 0.0722 30/360 $ 4,000,000.00 $ 3,951,004.62
C184 Melbourne FL 32901 0.0725 ACT/360 $ 3,704,000.00 $ 3,674,167.39
P185 Sunnyvale CA 94088 0.0913 30/360 $ 3,825,000.00 $ 3,605,873.55
P186 Portland OR 97201 0.0747 30/360 $ 3,700,000.00 $ 3,572,676.35
P187 Westlake Village CA 91362 0.0721 30/360 $ 3,500,000.00 $ 3,342,136.68
P188 Rancho Cucamonga CA 91730 0.08625 30/360 $ 3,562,500.00 $ 3,336,659.52
P189 Fullerton CA 92631 0.0775 ACT/360 $ 3,300,000.00 $ 3,129,956.45
P190 Santa Fe Springs CA 90670 0.09225 30/360 $ 3,700,000.00 $ 3,104,500.11
C191 Various NV Various 0.074 ACT/360 $ 3,119,000.00 $ 3,103,445.56
P192 Emeryville CA 94608 0.0841 30/360 $ 3,200,000.00 $ 3,034,195.70
P193 Anchorage AK 99501 0.0825 30/360 $ 3,000,000.00 $ 2,931,832.70
P194 Santa Ana CA 92705 0.0755 30/360 $ 3,000,000.00 $ 2,833,086.48
P195 Tacoma WA 98409 0.0811 30/360 $ 2,750,000.00 $ 2,648,912.63
P196 Phoenix AZ 85027 0.0825 ACT/360 $ 2,800,000.00 $ 2,594,726.92
C197 Bronx NY 10451 0.0725 ACT/360 $ 2,500,000.00 $ 2,482,418.31
P198 Fremont CA 94539 0.0775 30/360 $ 2,500,000.00 $ 2,476,151.55
P199 Santa Ana CA 92074 0.0875 30/360 $ 2,600,000.00 $ 2,428,525.44
P200 Industry CA 91746 0.0858 30/360 $ 2,520,000.00 $ 2,392,615.93
C201 Hampton VA 23661 0.07725 ACT/360 $ 2,400,000.00 $ 2,374,787.68
P202 Hawthorne CA 90250 0.0725 30/360 $ 2,400,000.00 $ 2,316,697.18
P203 Torrance CA 90505 0.075 30/360 $ 2,137,500.00 $ 2,116,086.30
P204 Various CA Various 0.0846 30/360 $ 2,175,000.00 $ 2,109,587.84
P205 Torrance CA 90501 0.0875 30/360 $ 2,250,000.00 $ 2,093,793.31
P206 Santa Clarita CA 91355 0.0975 30/360 $ 2,200,000.00 $ 2,069,702.48
C207 Los Angeles CA 91406 0.07128 ACT/360 $ 2,050,000.00 $ 2,031,777.16
P208 San Clemente CA 92674 0.085 30/360 $ 2,100,000.00 $ 1,996,024.67
C209 Irvine CA 92618 0.06714 ACT/360 $ 2,000,000.00 $ 1,981,904.91
C210 Campbell CA 95008 0.06598 ACT/360 $ 2,000,000.00 $ 1,974,532.03
P211 Tualatin OR 97062 0.078 30/360 $ 2,000,000.00 $ 1,953,763.84
C212 Decatur GA 30035 0.07875 ACT/360 $ 1,880,000.00 $ 1,871,588.00
P213 Spokane WA 99202 0.085 30/360 $ 1,950,000.00 $ 1,843,267.39
P214 Compton CA 90220 0.085 30/360 $ 1,900,000.00 $ 1,829,493.29
P215 Santa Barbara CA 93101 0.09875 30/360 $ 1,870,000.00 $ 1,791,552.35
P216 Tustin CA 92680 0.0825 30/360 $ 1,875,000.00 $ 1,778,132.61
P217 Auburn WA 98001 0.09 30/360 $ 1,800,000.00 $ 1,727,577.47
P218 Brea CA 92621 0.0795 30/360 $ 1,745,000.00 $ 1,717,085.88
P219 North Highlands CA 95660 0.08375 30/360 $ 1,850,000.00 $ 1,696,253.90
P220 Bothell WA 98021 0.08625 30/360 $ 1,761,000.00 $ 1,681,629.67
P221 Bellvue WA 98005 0.0875 30/360 $ 1,813,200.00 $ 1,673,650.08
P222 Carlsbad CA 92009 0.0825 30/360 $ 1,800,000.00 $ 1,666,347.25
P223 Santa Clarita CA 91355 0.09 30/360 $ 1,700,000.00 $ 1,608,421.82
P224 Chehalis WA 98532 0.085 30/360 $ 1,625,000.00 $ 1,596,649.46
P225 Riverside CA 92507 0.0723 30/360 $ 1,625,000.00 $ 1,577,984.00
P226 Portland OR 97217 0.0769 30/360 $ 2,750,000.00 $ 1,544,707.98
C227 Irwindale CA 91706 0.07296 ACT/360 $ 1,535,000.00 $ 1,520,938.77
P228 Simi Valley CA 93063 0.10375 30/360 $ 1,593,750.00 $ 1,516,638.48
P229 Kent WA 98035 0.085 30/360 $ 1,600,000.00 $ 1,458,179.77
C230 Scottsdale AZ 85260 0.08 ACT/360 $ 1,187,544.39 $ 1,182,383.28
C231 Scottsdale AZ 85260 0.08 ACT/360 $ 1,014,350.00 $ 1,009,941.60
C232 Hayward CA 94544 0.07375 ACT/360 $ 975,000.00 $ 965,147.34
C233 Aurora IL 60506 0.0877 ACT/360 $ 731,000.00 $ 727,952.89
C234 San Francisco CA 94124 0.08 ACT/360 $ 500,000.00 $ 496,467.81
C235 Rancho Cordova CA 95670 0.0704 ACT/360 $24,550,000.00 $24,412,189.98
C236 Walnut Creek CA 94596 0.07125 ACT/360 $10,500,000.00 $10,428,931.50
C237 Jupiter FL 33477 0.0694 ACT/360 $ 9,000,000.00 $ 8,930,475.48
P238 Burlingame CA 94010 0.08625 30/360 $ 7,600,000.00 $ 7,249,073.88
P239 Thousand Oaks CA 91360 0.0774 30/360 $ 7,200,000.00 $ 6,721,278.53
P240 Las Vegas NV 89102 0.075 30/360 $ 6,510,000.00 $ 6,401,780.42
P241 Palo Alto CA 94301 0.089 30/360 $ 6,800,000.00 $ 6,040,256.77
C242 Jersey City NJ 07306 0.0678 ACT/360 $ 5,575,000.00 $ 5,525,290.33
P243 Tacoma WA 98499 0.07625 30/360 $ 4,830,000.00 $ 4,409,646.50
P244 San Diego CA 92130 0.10375 30/360 $ 4,550,000.00 $ 4,122,595.47
P245 Olympia WA 98501 0.076 30/360 $ 3,678,550.00 $ 3,587,306.03
P246 Richland WA 99352 0.08 30/360 $ 4,200,000.00 $ 3,528,084.65
P247 Studio City CA 91604 0.09 30/360 $ 3,475,000.00 $ 3,183,113.03
C248 Brooklyn NY 11229 0.0718 ACT/360 $ 3,000,000.00 $ 2,975,550.11
P249 Fresno CA 93711 0.0816 30/360 $ 3,000,000.00 $ 2,927,332.39
C250 St. Augustine FL 32092 0.0687 ACT/360 $ 2,724,800.00 $ 2,703,413.23
P251 Las Vegas NV 89102 0.08 30/360 $ 2,800,000.00 $ 2,597,438.25
C252 Las Vegas NV 89117 0.0706 ACT/360 $ 2,587,500.00 $ 2,573,583.23
C253 Haddon Heights NJ 08035 0.0733 ACT/360 $ 2,480,000.00 $ 2,440,813.66
C254 Half Moon Bay CA 94019 0.0746 ACT/360 $ 2,325,000.00 $ 2,312,956.82
P255 Las Vegas NV 89102 0.0775 30/360 $ 2,100,000.00 $ 2,056,258.52
C256 Reston VA 22090 0.0761 ACT/360 $ 2,000,000.00 $ 1,980,326.93
P257 Thousand Oaks CA 91360 0.0977 30/360 $ 2,075,000.00 $ 1,967,762.46
P258 Mission Viejo CA 92691 0.0884 30/360 $ 2,200,000.00 $ 1,926,407.63
P259 Monterey CA 93940 0.0775 30/360 $ 2,000,000.00 $ 1,900,738.05
C260 New York NY 10017 0.0716 ACT/360 $ 1,900,000.00 $ 1,883,235.83
C261 Gilbert AZ 85234 0.074 ACT/360 $ 1,875,000.00 $ 1,859,365.14
P262 San Clemente CA 92673 0.09 30/360 $ 1,960,000.00 $ 1,856,937.00
P263 Seattle WA 98101 0.08375 30/360 $ 2,100,000.00 $ 1,783,151.38
P264 San Rafael CA 94901 0.08625 30/360 $ 4,400,000.00 $ 1,692,020.47
P265 Kennewick WA 99336 0.08375 30/360 $ 1,700,000.00 $ 1,635,432.39
P266 Los Altos CA 94022 0.0795 30/360 $ 1,600,000.00 $ 1,580,553.05
P267 Sacramento CA 95825 0.085 30/360 $ 1,600,000.00 $ 1,568,916.99
C268 Minneapolis MN 55401 0.07123 ACT/360 $ 1,522,500.00 $ 1,508,950.46
C269 Durham NC 27704 0.0692 ACT/360 $ 1,400,000.00 $ 1,388,072.08
C270 Phoenix AZ 85016 0.07307 ACT/360 $ 1,220,000.00 $ 1,211,342.87
C271 San Diego CA 92131 0.077 ACT/360 $ 1,209,000.00 $ 1,206,038.74
C272 Franktown CO 80116 0.0809 ACT/360 $ 1,050,000.00 $ 1,043,587.91
C273 Aurora CO 80012 0.0725 ACT/360 $ 1,000,000.00 $ 993,419.95
C274 Gloucester VA 23061 0.075 ACT/360 $ 950,000.00 $ 937,569.37
C275 Phoenix AZ 85015 0.08167 ACT/360 $ 665,000.00 $ 660,408.81
P276 Tacoma WA 98406 0.0835 30/360 $ 9,500,000.00 $ 9,243,350.83
C277 Gresham OR 97030 0.08505 ACT/360 $ 8,500,000.00 $ 8,331,363.95
C278 Passaic NJ 07055 0.0896 ACT/360 $ 5,500,000.00 $ 5,479,097.71
C279 Dunn Loring VA 22027 0.085 ACT/360 $ 5,330,000.00 $ 5,307,632.26
P280 Tumwater WA 98502 0.09875 30/360 $ 5,800,000.00 $ 5,250,613.43
P281 Seattle WA 98125 0.0826 30/360 $ 5,275,000.00 $ 5,091,985.65
C282 Redmond WA 98052 0.0761 ACT/360 $ 4,350,000.00 $ 4,289,932.72
C283 St. Louis MO 63121 0.0812 ACT/360 $ 4,000,000.00 $ 3,953,289.38
P284 Ellensburg WA 98926 0.0775 30/360 $ 3,450,000.00 $ 3,386,540.81
P285 Stockton CA 95207 0.079 30/360 $ 3,430,000.00 $ 2,814,139.39
P286 Escondido CA 92025 0.0875 30/360 $ 2,900,000.00 $ 2,750,314.15
C287 Bloomfield NJ 07003 0.0861 ACT/360 $ 1,900,000.00 $ 1,892,210.49
P288 East Wenatchee WA 98802 0.0875 30/360 $ 1,825,000.00 $ 1,782,676.93
P289 Rohnert Park CA 94928 0.0775 30/360 $ 8,400,000.00 $ 7,921,463.13
P290 Sacramento CA 95827 0.07625 30/360 $ 4,200,000.00 $ 3,968,807.40
P291 Mesa AZ 85204 0.08375 30/360 $ 3,750,000.00 $ 3,626,703.22
P292 Tacoma WA 98409 0.07625 30/360 $ 3,360,000.00 $ 3,165,156.08
P293 Orcutt CA 93455 0.0775 30/360 $ 3,000,000.00 $ 2,833,455.85
P294 Orcutt CA 93455 0.07625 30/360 $ 2,870,000.00 $ 2,703,570.75
P295 Yakima WA 98908 0.07875 30/360 $ 2,450,000.00 $ 2,134,316.89
P296 Glendale AZ 85301 0.085 30/360 $ 2,200,000.00 $ 2,134,239.37
P297 Newberg OR 97132 0.079 30/360 $ 1,868,000.00 $ 1,774,390.52
P298 Auburn WA 98002 0.0737 ACT/360 $ 1,600,000.00 $ 1,564,026.02
P299 Apache Junction AZ 85220 0.08125 30/360 $ 1,600,000.00 $ 1,522,950.29
P300 Hanford CA 93230 0.07625 30/360 $ 1,575,000.00 $ 1,488,302.79
C301 Ukiah CA 95482 0.08 ACT/360 $ 970,000.00 $ 963,984.84
P302 Los Angeles CA 90064 0.0857 30/360 $ 3,320,000.00 $ 3,121,207.99
P303 Chatsworth CA 91311 0.0854 30/360 $ 3,214,000.00 $ 3,028,018.15
P304 Van Nuys CA 91411 0.0868 30/360 $ 2,977,000.00 $ 2,824,810.61
P305 Torrance CA 90503 0.0825 30/360 $ 3,400,000.00 $ 2,764,363.07
P306 Mission Viejo CA 92691 0.0875 30/360 $ 2,320,000.00 $ 2,199,596.83
C307 Various TX Various 0.08 ACT/360 $ 1,732,500.00 $ 1,724,437.47
P308 Moreno Valley CA 92553 0.08125 30/360 $ 1,750,000.00 $ 1,660,351.83
C309 Anaheim CA 92806 0.0807 ACT/360 $ 1,642,574.39 $ 1,634,798.77
C310 Columbus GA 31909 0.0755 ACT/360 $ 1,600,000.00 $ 1,588,029.54
P311 Castro Valley CA 94546 0.09 30/360 $ 1,650,000.00 $ 1,563,592.99
C312 Grand Prairie TX 75051 0.07355 ACT/360 $ 1,550,000.00 $ 1,537,864.87
P313 Boise ID 83706 0.085 30/360 $ 1,800,000.00 $ 1,536,313.49
P314 Las Vegas NV 89117 0.0851 ACT/360 $ 1,750,000.00 $ 1,239,201.92
C315 Hesperia CA 92345 0.07403 ACT/360 $ 1,000,000.00 $ 991,667.42
C316 Colton CA 92324 0.07064 ACT/360 $ 1,000,000.00 $ 991,632.54
C317 Hayward CA 94545 0.0775 ACT/360 $ 785,000.00 $ 780,397.91
C318 Lancaster TX 75134 0.08 ACT/360 $ 780,000.00 $ 774,489.76
C319 DeSoto TX 75115 0.0865 ACT/360 $ 565,000.00 $ 561,451.71
P320 Folsom CA 95630 0.0825 30/360 $ 7,125,000.00 $ 6,471,414.24
P321 Cornelius OR 97113 0.0875 30/360 $ 3,922,500.00 $ 3,607,393.81
P322 Various WA Various 0.09375 30/360 $ 3,700,000.00 $ 3,438,667.87
P323 Folsom CA 95630 0.0727 30/360 $ 3,307,266.00 $ 3,156,917.76
P324 Bellevue WA 98004 0.07375 30/360 $ 3,077,549.00 $ 2,881,541.28
P325 Glendale AZ 85308 0.085 30/360 $ 3,150,000.00 $ 2,849,346.34
P326 Seattle WA 98105 0.09375 30/360 $ 2,500,000.00 $ 2,096,824.22
P327 Las Vegas NV 89102 0.085 30/360 $ 2,000,000.00 $ 1,900,361.47
P328 Lynnwood WA 98036 0.08875 30/360 $ 1,980,245.00 $ 1,887,502.06
P329 Seattle WA 98104 0.0875 30/360 $ 7,570,000.00 $ 6,336,418.90
P330 Anaheim CA 92802 0.0949 30/360 $ 2,550,800.00 $ 2,265,145.79
P331 Costa Mesa CA 92627 0.09375 30/360 $ 4,000,000.00 $ 3,791,034.47
</TABLE>
<TABLE>
<CAPTION>
REMAINING
TERM TO STATED STATED
SEQUENCE MATURITY MATURITY PRIMARY MASTER OWNERSHIP
NUMBER* (MONTHS) DATE DUE DAY MONTHLY PAYMENT ADMIN. FEE SERVICING FEE SERVICING FEE INTEREST CROSSED
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
C1 113 01/01/2009 1st $158,280.63 0.00093 0.0005 0.0009075 Fee Simple Yes(1)
C2 113 01/01/2009 1st $142,179.67 0.00093 0.0005 0.0009075 Fee Simple Yes(1)
P3 107 07/01/2008 1st $170,057.16 0.00143 0.001 0.0014075 Fee Simple No
C4 112 12/01/2008 1st $ 90,946.43 0.00143 0.001 0.0014075 Fee Simple No
C5 100 12/01/2007 1st $ 86,378.12 0.00103 0.0006 0.0010075 Fee Simple No
P6 74 10/01/2005 1st $ 86,125.62 0.00143 0.001 0.0014075 Fee Simple No
C7 115 03/01/2009 1st $ 66,768.37 0.00143 0.001 0.0014075 Fee Simple No
P8 77 01/01/2006 1st $ 75,443.33 0.00143 0.001 0.0014075 Fee Simple No
C9 110 10/01/2008 1st $ 61,249.81 0.00143 0.001 0.0014075 Fee Simple No
P10 72 08/01/2005 1st $ 64,934.09 0.00143 0.001 0.0014075 Fee Simple No
C11 101 01/01/2008 1st $ 44,966.91 0.00163 0.0012 0.0016075 Fee Simple No
P12 65 12/05/2004 5th $ 55,251.00 0.00143 0.001 0.0014075 Fee Simple No
C13 110 10/01/2008 1st $ 33,059.68 0.00143 0.001 0.0014075 Fee Simple No
C14 105 05/01/2008 1st $ 34,359.92 0.00143 0.001 0.0014075 Fee Simple No
P15 71 07/01/2005 1st $ 39,065.86 0.00143 0.001 0.0014075 Fee Simple No
P16 105 05/01/2008 1st $ 36,862.66 0.00143 0.001 0.0014075 Fee Simple No
P17 76 12/01/2005 1st $ 37,112.33 0.00143 0.001 0.0014075 Fee Simple No
P18 73 09/01/2005 1st $ 31,857.58 0.00143 0.001 0.0014075 Fee Simple No
P19 79 03/01/2006 1st $ 39,283.44 0.00143 0.001 0.0014075 Fee Simple No
P20 103 03/01/2008 1st $ 32,127.06 0.00143 0.001 0.0014075 Fee Simple No
P21 83 07/01/2006 1st $ 35,446.02 0.00143 0.001 0.0014075 Fee Simple No
C22 101 01/01/2008 1st $ 30,040.35 0.00193 0.0015 0.0019075 Fee Simple No
P23 13 09/01/2000 1st $ 33,286.35 0.00143 0.001 0.0014075 Fee Simple No
P24 63 10/15/2004 15th $ 29,923.43 0.00143 0.001 0.0014075 Fee Simple No
P25 24 08/01/2001 1st $ 31,255.12 0.00143 0.001 0.0014075 Fee Simple No
P26 41 01/02/2003 1st $ 27,722.48 0.00143 0.001 0.0014075 Fee Simple No
C27 40 12/01/2002 1st $ 24,527.41 0.00143 0.001 0.0014075 Fee Simple No
C28 168 08/01/2013 1st $ 24,114.02 0.00143 0.001 0.0014075 Fee Simple No
P29 78 02/01/2006 1st $ 30,895.21 0.00143 0.001 0.0014075 Fee Simple No
P30 81 05/01/2006 1st $ 25,353.45 0.00143 0.001 0.0014075 Fee Simple No
P31 85 08/10/2006 10th $ 27,876.99 0.00143 0.001 0.0014075 Fee Simple No
C32 116 04/01/2009 1st $ 23,206.89 0.00143 0.001 0.0014075 Fee Simple No
P33 48 08/01/2003 1st $ 28,557.34 0.00143 0.001 0.0014075 Fee Simple No
P34 76 12/01/2005 1st $ 23,966.43 0.00143 0.001 0.0014075 Fee Simple No
P35 83 07/01/2006 1st $ 26,143.06 0.00143 0.001 0.0014075 Fee Simple No
P36 88 12/01/2006 1st $ 26,572.49 0.00143 0.001 0.0014075 Fee Simple No
P37 82 06/01/2006 1st $ 23,885.20 0.00143 0.001 0.0014075 Fee Simple No
P38 88 12/01/2006 1st $ 26,015.71 0.00143 0.001 0.0014075 Fee Simple No
P39 101 01/01/2008 1st $ 21,677.94 0.00143 0.001 0.0014075 Fee Simple No
P40 36 08/01/2002 1st $ 88,290.78 0.00143 0.001 0.0014075 Fee Simple No
C41 104 04/01/2008 1st $ 18,647.28 0.00143 0.001 0.0014075 Fee Simple No
P42 80 04/01/2006 1st $ 20,143.52 0.00143 0.001 0.0014075 Fee Simple No
C43 110 10/01/2008 1st $ 20,062.28 0.00143 0.001 0.0014075 Fee Simple No
C44 110 10/01/2008 1st $ 15,812.28 0.00143 0.001 0.0014075 Fee Simple No
P45 82 06/01/2006 1st $ 21,145.31 0.00143 0.001 0.0014075 Fee Simple No
C46 114 02/01/2009 1st $ 16,851.29 0.00143 0.001 0.0014075 Fee Simple No
C47 108 08/01/2008 1st $ 16,194.54 0.00143 0.001 0.0014075 Fee Simple No
P48 96 08/01/2007 1st $ 20,899.85 0.00143 0.001 0.0014075 Fee Simple No
C49 110 10/01/2008 1st $ 14,930.52 0.00143 0.001 0.0014075 Fee Simple No
C50 109 09/01/2008 1st $ 15,634.61 0.00143 0.001 0.0014075 Fee Simple No
C51 113 01/01/2009 1st $ 16,624.56 0.00143 0.001 0.0014075 Fee Simple No
P52 39 10/31/2002 1st $ 20,119.67 0.00143 0.001 0.0014075 Fee Simple No
C53 117 05/01/2009 1st $ 18,009.08 0.00143 0.001 0.0014075 Fee Simple No
P54 34 06/01/2002 1st $ 18,697.66 0.00143 0.001 0.0014075 Fee Simple No
P55 96 08/01/2007 1st $ 18,423.47 0.00143 0.001 0.0014075 Fee Simple No
C56 115 03/01/2009 1st $ 12,963.99 0.00143 0.001 0.0014075 Fee Simple No
P57 77 01/01/2006 1st $ 15,316.39 0.00143 0.001 0.0014075 Fee Simple No
P58 96 08/01/2007 1st $ 16,719.88 0.00143 0.001 0.0014075 Fee Simple No
P59 88 12/01/2006 1st $ 13,956.03 0.00143 0.001 0.0014075 Fee Simple No
C60 169 09/01/2013 1st $ 13,770.07 0.00183 0.0014 0.0018075 Fee Simple No
P61 85 09/01/2006 1st $ 13,792.32 0.00143 0.001 0.0014075 Fee Simple No
C62 117 05/01/2009 1st $ 13,380.94 0.00143 0.001 0.0014075 Fee Simple No
C63 114 02/01/2009 1st $ 12,432.02 0.00143 0.001 0.0014075 Fee Simple No
C64 114 02/01/2009 1st $ 12,488.99 0.00143 0.001 0.0014075 Fee Simple No
C65 114 02/01/2009 1st $ 12,452.36 0.00143 0.001 0.0014075 Fee Simple No
C66 100 12/01/2007 1st $ 12,966.49 0.00143 0.001 0.0014075 Fee Simple No
P67 96 08/01/2007 1st $ 15,860.11 0.00143 0.001 0.0014075 Fee Simple No
P68 96 08/01/2007 1st $ 15,860.11 0.00143 0.001 0.0014075 Fee Simple No
C69 174 02/01/2014 1st $ 12,616.69 0.00143 0.001 0.0014075 Fee Simple No
P70 80 04/01/2006 1st $ 14,513.02 0.00143 0.001 0.0014075 Fee Simple No
P71 82 06/01/2006 1st $ 14,896.70 0.00143 0.001 0.0014075 Fee Simple No
P72 20 04/01/2001 1st $ 15,218.79 0.00143 0.001 0.0014075 Fee Simple No
C73 100 12/01/2007 1st $ 11,701.62 0.00143 0.001 0.0014075 Fee Simple No
C74 109 09/01/2008 1st $ 10,977.49 0.00143 0.001 0.0014075 Fee Simple No
P75 96 08/01/2007 1st $ 14,236.33 0.00143 0.001 0.0014075 Fee Simple No
C76 108 08/01/2008 1st $ 10,335.06 0.00143 0.001 0.0014075 Fee Simple No
P77 78 02/01/2006 1st $ 13,943.50 0.00143 0.001 0.0014075 Fee Simple No
P78 90 02/01/2007 1st $ 14,214.82 0.00143 0.001 0.0014075 Fee Simple No
P79 23 07/01/2001 1st $ 13,846.74 0.00143 0.001 0.0014075 Fee Simple No
P80 84 08/01/2006 1st $ 12,214.69 0.00143 0.001 0.0014075 Fee Simple No
C81 113 01/01/2009 1st $ 10,917.95 0.00143 0.001 0.0014075 Fee Simple No
C82 110 10/01/2008 1st $ 10,179.69 0.00143 0.001 0.0014075 Fee Simple No
C83 114 02/01/2009 1st $ 8,954.40 0.00143 0.001 0.0014075 Fee Simple No
C84 115 03/01/2009 1st $ 9,061.64 0.00143 0.001 0.0014075 Fee Simple No
C85 114 02/01/2009 1st $ 8,519.57 0.00143 0.001 0.0014075 Fee Simple No
C86 116 04/01/2009 1st $ 7,450.66 0.00143 0.001 0.0014075 Fee Simple No
C87 109 09/01/2008 1st $ 6,545.92 0.00143 0.001 0.0014075 Fee Simple No
C88 114 02/01/2009 1st $ 5,954.52 0.00143 0.001 0.0014075 Fee Simple No
C89 114 02/01/2009 1st $ 5,891.33 0.00143 0.001 0.0014075 Fee Simple No
C90 113 01/01/2009 1st $ 6,246.24 0.00143 0.001 0.0014075 Fee Simple No
C91 113 01/01/2009 1st $ 5,529.68 0.00143 0.001 0.0014075 Fee Simple No
C92 113 01/01/2009 1st $ 5,714.97 0.00143 0.001 0.0014075 Fee Simple No
C93 113 01/01/2009 1st $ 5,302.88 0.00143 0.001 0.0014075 Fee Simple No
C94 109 09/01/2008 1st $ 4,519.11 0.00143 0.001 0.0014075 Fee Simple No
C95 113 01/01/2009 1st $ 4,777.27 0.00143 0.001 0.0014075 Fee Simple No
C96 116 04/01/2009 1st $ 4,230.26 0.00143 0.001 0.0014075 Fee Simple No
C97 113 01/01/2009 1st $ 4,355.93 0.00143 0.001 0.0014075 Fee Simple No
C98 173 01/01/2014 1st $ 4,709.82 0.00143 0.001 0.0014075 Fee Simple No
C99 110 10/01/2008 1st $ 82,247.57 0.00143 0.001 0.0014075 Fee Simple No
C100 114 02/01/2009 1st $ 88,796.06 0.00143 0.001 0.0014075 Fee Simple No
P101 85 08/10/2006 10th $ 92,153.06 0.00143 0.001 0.0014075 Fee Simple No
C102 101 01/01/2008 1st $ 83,902.41 0.00148 0.00105 0.0014575 Fee Simple No
P103 77 01/01/2006 1st $ 84,983.99 0.00143 0.001 0.0014075 Fee Simple No
P104 123 10/15/2009 15th $108,276.01 0.00143 0.001 0.0014075 Fee Simple No
C105 105 05/01/2008 1st $ 66,521.24 0.00143 0.001 0.0014075 Fee Simple No
C106 110 10/01/2008 1st $ 57,136.18 0.00143 0.001 0.0014075 Fee Simple No
P107 81 05/01/2006 1st $ 67,824.78 0.00143 0.001 0.0014075 Fee Simple No
P108 60 07/15/2004 15th $ 61,836.00 0.00143 0.001 0.0014075 Fee Simple No
C109 109 09/01/2008 1st $ 47,202.18 0.00143 0.001 0.0014075 Fee Simple No
C110 114 02/01/2009 1st $ 45,973.35 0.00143 0.001 0.0014075 Fee Simple No
P111 77 01/01/2006 1st $ 53,450.60 0.00143 0.001 0.0014075 Fee Simple No
P112 72 08/01/2005 1st $ 51,500.50 0.00143 0.001 0.0014075 Fee Simple No
P113 88 12/01/2006 1st $ 56,191.02 0.00143 0.001 0.0014075 Fee Simple No
C114 173 01/01/2014 1st $ 43,554.03 0.00143 0.001 0.0014075 Fee Simple No
C115 173 01/01/2014 1st $ 41,970.25 0.00143 0.001 0.0014075 Fee Simple No
C116 111 11/01/2008 1st $ 34,108.81 0.00143 0.001 0.0014075 Leasehold No
C117 110 10/01/2008 1st $ 32,230.74 0.00143 0.001 0.0014075 Fee Simple No
C118 88 12/31/2006 1st $ 34,581.22 0.00143 0.001 0.0014075 Fee Simple No
C119 107 07/01/2008 1st $ 30,423.71 0.00143 0.001 0.0014075 Fee Simple No
C120 110 10/01/2008 1st $ 30,025.54 0.00143 0.001 0.0014075 Fee Simple No
C121 163 03/01/2013 1st $ 31,685.11 0.00143 0.001 0.0014075 Fee Simple No
C122 62 10/01/2004 1st $ 32,830.60 0.00143 0.001 0.0014075 Fee Simple No
C123 112 12/01/2008 1st $ 28,418.21 0.00143 0.001 0.0014075 Fee Simple No
P124 106 06/01/2008 1st $ 33,466.48 0.00143 0.001 0.0014075 Fee Simple No
C125 107 07/01/2008 1st $ 27,453.44 0.00143 0.001 0.0014075 Fee Simple No
P126 120 08/01/2009 1st $ 53,407.59 0.00143 0.001 0.0014075 Fee Simple No
C127 113 01/01/2009 1st $ 25,718.76 0.00143 0.001 0.0014075 Fee Simple No
P128 147 11/01/2011 1st $ 42,533.05 0.00143 0.001 0.0014075 Fee Simple No
P129 101 01/01/2008 1st $ 27,785.38 0.00143 0.001 0.0014075 Leasehold No
C130 114 02/01/2009 1st $ 24,046.71 0.00143 0.001 0.0014075 Fee Simple No
C131 114 02/01/2009 1st $ 24,381.52 0.00143 0.001 0.0014075 Fee Simple No
P132 73 09/01/2005 1st $ 26,851.05 0.00143 0.001 0.0014075 Fee Simple No
C133 113 01/01/2009 1st $ 21,752.08 0.00143 0.001 0.0014075 Fee Simple No
P134 73 09/01/2005 1st $ 25,364.65 0.00143 0.001 0.0014075 Fee Simple No
C135 111 11/01/2008 1st $ 19,959.07 0.00143 0.001 0.0014075 Fee Simple No
P136 109 09/01/2008 1st $ 22,033.32 0.00143 0.001 0.0014075 Fee Simple No
C137 109 09/01/2008 1st $ 21,133.12 0.00143 0.001 0.0014075 Fee Simple No
C138 116 04/01/2009 1st $ 19,964.82 0.00143 0.001 0.0014075 Fee Simple No
C139 108 08/01/2008 1st $ 19,049.69 0.00143 0.001 0.0014075 Fee Simple No
C140 113 01/01/2009 1st $ 23,037.28 0.00143 0.001 0.0014075 Fee Simple No
C141 113 01/01/2009 1st $ 19,576.87 0.00143 0.001 0.0014075 Fee Simple No
C142 109 09/01/2008 1st $ 18,518.44 0.00143 0.001 0.0014075 Fee Simple No
C143 109 09/01/2008 1st $ 17,650.46 0.00143 0.001 0.0014075 Fee Simple No
C144 117 05/01/2009 1st $ 17,498.77 0.00143 0.001 0.0014075 Fee Simple No
C145 117 05/01/2009 1st $ 18,519.58 0.00143 0.001 0.0014075 Leasehold No
C146 115 03/01/2009 1st $ 16,334.67 0.00143 0.001 0.0014075 Fee Simple No
P147 104 04/01/2008 1st $ 18,134.35 0.00143 0.001 0.0014075 Leasehold No
P148 95 07/01/2007 1st $ 18,909.30 0.00143 0.001 0.0014075 Fee Simple No
C149 110 10/01/2008 1st $ 16,384.39 0.00143 0.001 0.0014075 Fee Simple No
C150 144 08/01/2011 1st $ 17,855.97 0.00143 0.001 0.0014075 Fee Simple No
C151 113 01/01/2009 1st $ 14,400.73 0.00143 0.001 0.0014075 Fee Simple No
C152 108 08/01/2008 1st $ 14,521.05 0.00143 0.001 0.0014075 Fee Simple No
P153 150 02/01/2012 1st $ 22,777.78 0.00143 0.001 0.0014075 Fee Simple No
P154 61 09/01/2004 1st $ 18,347.63 0.00143 0.001 0.0014075 Fee Simple No
P155 94 06/01/2007 1st $ 17,877.16 0.00143 0.001 0.0014075 Fee Simple No
P156 15 11/01/2000 1st $ 16,104.54 0.00143 0.001 0.0014075 Fee Simple No
P157 79 03/01/2006 1st $ 15,098.01 0.00143 0.001 0.0014075 Fee Simple No
P158 161 01/01/2013 1st $ 18,704.85 0.00143 0.001 0.0014075 Fee Simple No
C159 173 01/01/2014 1st $ 13,791.20 0.00143 0.001 0.0014075 Fee Simple No
P160 171 11/01/2013 1st $ 15,945.52 0.00143 0.001 0.0014075 Fee Simple No
P161 171 11/01/2013 1st $ 15,945.52 0.00143 0.001 0.0014075 Fee Simple No
P162 68 04/01/2005 1st $ 17,289.61 0.00143 0.001 0.0014075 Fee Simple No
P163 66 02/01/2005 1st $ 16,362.12 0.00143 0.001 0.0014075 Fee Simple No
C164 110 10/01/2008 1st $ 10,708.92 0.00143 0.001 0.0014075 Fee Simple No
C165 114 02/01/2009 1st $ 11,885.97 0.00143 0.001 0.0014075 Fee Simple No
C166 116 04/01/2009 1st $ 11,438.26 0.00143 0.001 0.0014075 Fee Simple No
C167 111 11/01/2008 1st $ 7,576.98 0.00143 0.001 0.0014075 Fee Simple No
C168 111 11/01/2008 1st $ 6,996.92 0.00143 0.001 0.0014075 Fee Simple No
C169 113 01/01/2009 1st $ 7,946.18 0.00143 0.001 0.0014075 Fee Simple No
C170 113 01/01/2009 1st $ 6,824.86 0.00143 0.001 0.0014075 Fee Simple No
C171 114 02/01/2009 1st $ 6,439.73 0.00143 0.001 0.0014075 Fee Simple No
C172 113 01/01/2009 1st $ 6,042.04 0.00143 0.001 0.0014075 Fee Simple No
C173 173 01/01/2014 1st $ 5,829.48 0.00143 0.001 0.0014075 Fee Simple No
C174 113 01/01/2009 1st $ 4,199.55 0.00143 0.001 0.0014075 Fee Simple No
C175 114 02/01/2009 1st $ 2,501.69 0.00143 0.001 0.0014075 Fee Simple No
P176 75 11/01/2005 1st $ 65,604.38 0.00143 0.001 0.0014075 Fee Simple No
C177 108 08/01/2008 1st $ 49,750.26 0.00143 0.001 0.0014075 Fee Simple No
P178 65 01/01/2005 1st $ 55,285.22 0.00143 0.001 0.0014075 Fee Simple No
C179 113 01/01/2009 1st $ 37,285.56 0.00143 0.001 0.0014075 Fee Simple No
P180 16 11/30/2000 1st $ 39,704.81 0.00143 0.001 0.0014075 Leasehold No
P181 89 01/01/2007 1st $ 38,229.50 0.00143 0.001 0.0014075 Fee Simple No
C182 109 09/01/2008 1st $ 33,408.02 0.00143 0.001 0.0014075 Fee Simple No
P183 110 10/01/2008 1st $ 28,835.01 0.00143 0.001 0.0014075 Fee Simple No
C184 102 02/01/2008 1st $ 26,772.77 0.00143 0.001 0.0014075 Leasehold No
P185 41 01/01/2003 1st $ 31,135.27 0.00143 0.001 0.0014075 Fee Simple No
P186 102 01/01/2008 15th $ 29,739.11 0.00143 0.001 0.0014075 Fee Simple No
P187 166 06/01/2013 1st $ 31,871.34 0.00143 0.001 0.0014075 Fee Simple No
P188 65 01/01/2005 1st $ 28,998.02 0.00143 0.001 0.0014075 Fee Simple No
P189 82 05/10/2006 10th $ 24,803.15 0.00143 0.001 0.0014075 Fee Simple No
P190 129 05/01/2010 1st $ 38,024.71 0.00143 0.001 0.0014075 Fee Simple No
C191 113 01/01/2009 1st $ 21,595.33 0.00143 0.001 0.0014075 Fee Simple No
P192 39 11/01/2002 1st $ 25,573.48 0.00143 0.001 0.0014075 Fee Simple No
P193 99 11/01/2007 1st $ 23,653.50 0.00143 0.001 0.0014075 Fee Simple No
P194 41 01/01/2003 1st $ 22,267.40 0.00143 0.001 0.0014075 Fee Simple No
P195 88 12/01/2006 1st $ 21,425.73 0.00143 0.001 0.0014075 Fee Simple No
P196 21 05/01/2001 1st $ 22,076.60 0.00143 0.001 0.0014075 Fee Simple No
C197 134 10/01/2010 1st $ 18,070.17 0.00143 0.001 0.0014075 Fee Simple No
P198 107 07/01/2008 1st $ 17,910.31 0.00143 0.001 0.0014075 Fee Simple No
P199 63 11/01/2004 1st $ 21,363.52 0.00143 0.001 0.0014075 Fee Simple No
P200 39 11/01/2002 1st $ 20,427.76 0.00143 0.001 0.0014075 Fee Simple No
C201 78 02/01/2006 1st $ 19,665.76 0.00143 0.001 0.0014075 Fee Simple No
P202 91 03/01/2007 1st $ 17,397.31 0.00143 0.001 0.0014075 Fee Simple No
P203 107 07/01/2008 1st $ 14,945.71 0.00143 0.001 0.0014075 Fee Simple No
P204 55 03/01/2004 1st $ 17,455.10 0.00143 0.001 0.0014075 Fee Simple No
P205 80 04/01/2006 1st $ 19,883.49 0.00143 0.001 0.0014075 Fee Simple No
P206 25 09/01/2001 1st $ 19,605.02 0.00143 0.001 0.0014075 Fee Simple No
C207 108 08/01/2008 1st $ 13,815.38 0.00143 0.001 0.0014075 Fee Simple No
P208 77 01/01/2006 1st $ 16,891.90 0.00143 0.001 0.0014075 Fee Simple No
C209 109 09/01/2008 1st $ 12,924.14 0.00143 0.001 0.0014075 Fee Simple No
C210 110 10/01/2008 1st $ 13,626.87 0.00143 0.001 0.0014075 Fee Simple No
P211 100 12/01/2007 1st $ 15,172.29 0.00143 0.001 0.0014075 Fee Simple No
C212 113 01/01/2009 1st $ 13,631.30 0.00143 0.001 0.0014075 Fee Simple No
P213 89 01/01/2007 1st $ 16,925.16 0.00143 0.001 0.0014075 Fee Simple No
P214 87 11/01/2006 1st $ 15,279.79 0.00143 0.001 0.0014075 Fee Simple No
P215 92 04/01/2007 1st $ 17,891.31 0.00143 0.001 0.0014075 Fee Simple No
P216 76 12/01/2005 1st $ 14,783.44 0.00143 0.001 0.0014075 Fee Simple No
P217 81 05/01/2006 1st $ 15,105.53 0.00143 0.001 0.0014075 Fee Simple No
P218 38 10/01/2002 1st $ 12,743.42 0.00143 0.001 0.0014075 Fee Simple No
P219 76 12/01/2005 1st $ 15,908.67 0.00143 0.001 0.0014075 Fee Simple No
P220 79 03/01/2006 1st $ 14,328.70 0.00143 0.001 0.0014075 Fee Simple No
P221 19 03/01/2001 1st $ 14,907.11 0.00143 0.001 0.0014075 Fee Simple No
P222 24 08/01/2001 1st $ 14,198.38 0.00143 0.001 0.0014075 Fee Simple No
P223 70 06/01/2005 1st $ 14,266.34 0.00143 0.001 0.0014075 Fee Simple No
P224 103 03/01/2008 1st $ 13,084.94 0.00143 0.001 0.0014075 Fee Simple No
P225 171 11/01/2013 1st $ 14,815.71 0.00143 0.001 0.0014075 Fee Simple No
P226 56 04/01/2004 1st $ 32,916.34 0.00143 0.001 0.0014075 Fee Simple No
C227 107 07/01/2008 1st $ 10,519.34 0.00143 0.001 0.0014075 Fee Simple No
P228 6 02/01/2000 1st $ 14,905.84 0.00143 0.001 0.0014075 Fee Simple No
P229 151 03/01/2012 1st $ 15,755.83 0.00143 0.001 0.0014075 Fee Simple No
C230 113 01/01/2009 1st $ 8,713.78 0.00143 0.001 0.0014075 Fee Simple No
C231 113 01/01/2009 1st $ 7,442.94 0.00143 0.001 0.0014075 Fee Simple No
C232 111 11/01/2008 1st $ 7,126.08 0.00143 0.001 0.0014075 Fee Simple No
C233 117 05/01/2009 1st $ 6,469.26 0.00143 0.001 0.0014075 Fee Simple No
C234 113 01/01/2009 1st $ 3,859.08 0.00143 0.001 0.0014075 Fee Simple No
C235 138 02/01/2011 1st $174,141.24 0.00143 0.001 0.0014075 Fee Simple No
C236 111 11/01/2008 1st $ 70,740.44 0.00143 0.001 0.0014075 Fee Simple No
C237 110 10/01/2008 1st $ 59,515.00 0.00143 0.001 0.0014075 Fee Simple No
P238 19 03/01/2001 1st $ 61,767.32 0.00143 0.001 0.0014075 Fee Simple No
P239 116 04/01/2009 1st $ 61,806.70 0.00143 0.001 0.0014075 Fee Simple No
P240 106 06/01/2008 1st $ 48,108.33 0.00143 0.001 0.0014075 Fee Simple No
P241 25 09/01/2001 1st $ 60,744.72 0.00143 0.001 0.0014075 Fee Simple No
C242 109 09/01/2008 1st $ 36,270.59 0.00113 0.0007 0.0011075 Fee Simple No
P243 39 11/01/2002 1st $ 34,974.42 0.00143 0.001 0.0014075 Fee Simple No
P244 26 10/01/2001 1st $ 45,044.88 0.00143 0.001 0.0014075 Fee Simple No
P245 99 11/01/2007 1st $ 27,431.98 0.00143 0.001 0.0014075 Fee Simple No
P246 62 09/30/2004 1st $ 29,318.28 0.00143 0.001 0.0014075 Fee Simple No
P247 37 09/01/2002 1st $ 31,265.48 0.00143 0.001 0.0014075 Fee Simple No
C248 109 09/01/2008 1st $ 20,323.04 0.00143 0.001 0.0014075 Fee Simple No
P249 98 10/01/2007 1st $ 23,473.36 0.00143 0.001 0.0014075 Fee Simple No
C250 110 10/01/2008 1st $ 17,890.89 0.00143 0.001 0.0014075 Fee Simple No
P251 24 08/01/2001 1st $ 21,726.01 0.00143 0.001 0.0014075 Fee Simple No
C252 113 01/01/2009 1st $ 17,319.09 0.00143 0.001 0.0014075 Fee Simple No
C253 106 06/01/2008 1st $ 18,053.63 0.00143 0.001 0.0014075 Fee Simple No
C254 103 03/01/2008 1st $ 17,121.10 0.00143 0.001 0.0014075 Fee Simple No
P255 102 02/01/2008 1st $ 15,861.90 0.00143 0.001 0.0014075 Fee Simple No
C256 105 05/01/2008 1st $ 14,135.24 0.00143 0.001 0.0014075 Fee Simple No
P257 67 03/01/2005 1st $ 18,520.16 0.00143 0.001 0.0014075 Fee Simple No
P258 20 04/01/2001 1st $ 19,568.15 0.00143 0.001 0.0014075 Fee Simple No
P259 164 04/01/2013 1st $ 18,825.52 0.00143 0.001 0.0014075 Fee Simple No
C260 108 08/01/2008 1st $ 12,845.57 0.00143 0.001 0.0014075 Fee Simple No
C261 108 08/01/2008 1st $ 12,982.12 0.00143 0.001 0.0014075 Fee Simple No
P262 35 07/01/2002 1st $ 16,448.25 0.00143 0.001 0.0014075 Fee Simple No
P263 12 08/01/2000 1st $ 18,058.49 0.00143 0.001 0.0014075 Fee Simple No
P264 62 10/01/2004 1st $ 34,325.54 0.00143 0.001 0.0014075 Fee Simple No
P265 87 11/01/2006 1st $ 13,547.05 0.00143 0.001 0.0014075 Fee Simple No
P266 103 03/01/2008 1st $ 11,684.51 0.00143 0.001 0.0014075 Fee Simple No
P267 91 03/01/2007 1st $ 12,302.62 0.00143 0.001 0.0014075 Fee Simple No
C268 108 08/01/2008 1st $ 10,255.31 0.00143 0.001 0.0014075 Fee Simple No
C269 112 12/01/2008 1st $ 9,823.58 0.00143 0.001 0.0014075 Fee Simple No
C270 110 10/01/2008 1st $ 8,369.77 0.00143 0.001 0.0014075 Fee Simple No
C271 116 04/01/2009 1st $ 8,619.69 0.00143 0.001 0.0014075 Fee Simple No
C272 114 02/01/2009 1st $ 8,166.77 0.00143 0.001 0.0014075 Fee Simple No
C273 111 11/01/2008 1st $ 6,821.76 0.00143 0.001 0.0014075 Fee Simple No
C274 72 08/01/2005 1st $ 7,020.42 0.00293 0.0025 0.0029075 Fee Simple No
C275 108 08/01/2008 1st $ 4,957.17 0.00143 0.001 0.0014075 Fee Simple No
P276 95 07/01/2007 1st $ 75,538.67 0.00143 0.001 0.0014075 Fee Simple No
C277 99 11/01/2007 1st $ 68,472.94 0.00243 0.002 0.0024075 Fee Simple No
C278 115 03/01/2009 1st $ 46,005.24 0.00143 0.001 0.0014075 Fee Simple No
C279 115 03/01/2009 1st $ 42,918.60 0.00143 0.001 0.0014075 Fee Simple No
P280 76 12/01/2005 1st $ 55,491.76 0.00143 0.001 0.0014075 Fee Simple No
P281 88 12/01/2006 1st $ 41,626.00 0.00143 0.001 0.0014075 Fee Simple No
C282 107 07/01/2008 1st $ 32,458.00 0.00143 0.001 0.0014075 Fee Simple No
C283 108 08/01/2008 1st $ 31,191.30 0.00143 0.001 0.0014075 Fee Simple No
P284 104 04/01/2008 1st $ 26,058.84 0.00143 0.001 0.0014075 Fee Simple No
P285 61 09/01/2004 1st $ 26,079.68 0.00143 0.001 0.0014075 Fee Simple No
P286 90 02/01/2007 1st $ 25,627.61 0.00143 0.001 0.0014075 Fee Simple No
C287 115 03/01/2009 1st $ 15,440.41 0.00143 0.001 0.0014075 Fee Simple No
P288 98 10/01/2007 1st $ 15,004.12 0.00143 0.001 0.0014075 Fee Simple No
P289 75 11/01/2005 1st $ 63,447.62 0.00143 0.001 0.0014075 Fee Simple No
P290 77 01/01/2006 1st $ 31,379.92 0.00143 0.001 0.0014075 Fee Simple No
P291 90 02/01/2007 1st $ 29,880.79 0.00143 0.001 0.0014075 Fee Simple No
P292 38 10/01/2002 1st $ 25,103.94 0.00143 0.001 0.0014075 Fee Simple No
P293 76 12/01/2005 1st $ 22,659.86 0.00143 0.001 0.0014075 Fee Simple No
P294 75 11/01/2005 1st $ 21,442.95 0.00143 0.001 0.0014075 Fee Simple No
P295 58 06/01/2004 1st $ 20,342.24 0.00143 0.001 0.0014075 Fee Simple No
P296 92 04/01/2007 1st $ 17,715.00 0.00143 0.001 0.0014075 Fee Simple No
P297 79 03/01/2006 1st $ 14,294.00 0.00143 0.001 0.0014075 Fee Simple No
P298 103 02/10/2008 10th $ 11,772.91 0.00143 0.001 0.0014075 Fee Simple No
P299 81 05/01/2006 1st $ 12,451.16 0.00143 0.001 0.0014075 Fee Simple No
P300 77 01/01/2006 1st $ 11,767.47 0.00143 0.001 0.0014075 Fee Simple No
C301 114 02/01/2009 1st $ 7,486.62 0.00143 0.001 0.0014075 Fee Simple No
P302 38 10/01/2002 1st $ 26,890.33 0.00143 0.001 0.0014075 Fee Simple No
P303 35 06/30/2002 1st $ 25,966.69 0.00143 0.001 0.0014075 Fee Simple No
P304 38 10/01/2002 1st $ 24,333.79 0.00143 0.001 0.0014075 Fee Simple No
P305 125 01/01/2010 1st $ 33,033.41 0.00143 0.001 0.0014075 Fee Simple No
P306 73 09/01/2005 1st $ 19,073.73 0.00143 0.001 0.0014075 Fee Simple No
C307 115 03/01/2009 1st $ 13,371.72 0.00143 0.001 0.0014075 Fee Simple No
P308 77 01/01/2006 1st $ 13,652.01 0.00143 0.001 0.0014075 Fee Simple No
C309 112 12/01/2008 1st $ 12,132.88 0.00143 0.001 0.0014075 Fee Simple No
C310 169 09/01/2013 1st $ 11,242.26 0.00143 0.001 0.0014075 Fee Simple No
P311 89 01/01/2007 1st $ 14,840.28 0.00143 0.001 0.0014075 Fee Simple No
C312 169 09/01/2013 1st $ 10,684.35 0.00193 0.0015 0.0019075 Fee Simple No
P313 49 09/01/2003 1st $ 15,620.82 0.00143 0.001 0.0014075 Fee Simple No
P314 22 05/23/2001 1st $ 17,187.40 0.00143 0.001 0.0014075 Fee Simple No
C315 108 08/01/2008 1st $ 6,925.84 0.00143 0.001 0.0014075 Fee Simple No
C316 109 09/01/2008 1st $ 6,696.06 0.00143 0.001 0.0014075 Fee Simple No
C317 111 11/01/2008 1st $ 5,623.84 0.00143 0.001 0.0014075 Fee Simple No
C318 113 01/01/2009 1st $ 6,020.17 0.00143 0.001 0.0014075 Fee Simple No
C319 113 01/01/2009 1st $ 4,606.79 0.00143 0.001 0.0014075 Fee Simple No
P320 150 02/01/2012 1st $ 69,281.31 0.00143 0.001 0.0014075 Fee Simple No
P321 153 05/01/2012 1st $ 39,203.37 0.00143 0.001 0.0014075 Fee Simple No
P322 78 02/01/2006 1st $ 34,187.40 0.00143 0.001 0.0014075 Fee Simple No
P323 150 02/01/2012 1st $ 32,221.12 0.00143 0.001 0.0014075 Fee Simple No
P324 61 09/01/2004 1st $ 22,910.49 0.00143 0.001 0.0014075 Fee Simple No
P325 149 01/01/2012 1st $ 31,019.30 0.00143 0.001 0.0014075 Fee Simple No
P326 43 03/01/2003 1st $ 22,796.28 0.00143 0.001 0.0014075 Fee Simple No
P327 40 12/01/2002 1st $ 16,104.54 0.00143 0.001 0.0014075 Fee Simple No
P328 91 03/01/2007 1st $ 17,657.89 0.00143 0.001 0.0014075 Fee Simple No
P329 79 02/28/2006 1st $ 60,424.81 0.00143 0.001 0.0014075 Fee Simple No
P330 22 06/01/2001 1st $ 23,760.15 0.00143 0.001 0.0014075 Fee Simple No
P331 69 05/01/2005 1st $ 34,600.93 0.00143 0.001 0.0014075 Fee Simple No
</TABLE>
<TABLE>
<CAPTION>
ORIGINAL
SEQUENCE MEASUREMENT AMORTIZATION
NUMBER* PROPERTY TYPE TOTAL UNITS UNIT (MONTHS)
- -----------------------------------------------------------------------------
<S> <C> <C> <C> <C>
C1 Multifamily 484 Units 360
C2 Multifamily 304 Units 360
P3 Multifamily 562 Units 360
C4 Multifamily 810 Units 360
C5 Multifamily 312 Units 360
P6 Multifamily 296 Units 360
C7 Multifamily 384 Units 360
P8 Multifamily 492 Units 300
C9 Multifamily 216 Units 360
P10 Multifamily 300 Units 336
C11 Multifamily 136 Units 360
P12 Multifamily 226 Units 300
C13 Multifamily 106 Units 360
C14 Multifamily 134 Units 360
P15 Multifamily 152 Units 360
P16 Multifamily 100 Units 360
P17 Multifamily 150 Units 300
P18 Multifamily 176 Units 360
P19 Multifamily 506 Units 240
P20 Multifamily 254 Units 300
P21 Multifamily 147 Units 300
C22 Multifamily 196 Units 350
P23 Multifamily 136 Units 300
P24 Multifamily 110 Units 360
P25 Multifamily 120 Units 300
P26 Multifamily 170 Units 360
C27 Multifamily 156 Units 360
C28 Multifamily 146 Units 360
P29 Multifamily 452 Units 240
P30 Multifamily 153 Units 360
P31 Multifamily 176 Units 300
C32 Multifamily 200 Units 360
P33 Multifamily 146 Units 300
P34 Multifamily 73 Units 360
P35 Multifamily 80 Units 360
P36 Multifamily 144 Units 300
P37 Multifamily 48 Units 360
P38 Multifamily 220 Units 240
P39 Multifamily 148 Units 300
P40 Multifamily 400 Units 96
C41 Multifamily 106 Units 360
P42 Multifamily 94 Units 360
C43 Multifamily 65 Units 240
C44 Multifamily 72 Units 360
P45 Multifamily 174 Units 300
C46 Multifamily 22 Units 360
C47 Multifamily 130 Units 360
P48 Multifamily 244 Units 240
C49 Multifamily 98 Units 360
C50 Multifamily 168 Units 360
C51 Multifamily 105 Units 300
P52 Multifamily 124 Units 240
C53 Multifamily 127 Units 240
P54 Multifamily 42 Units 360
P55 Multifamily 257 Units 240
C56 Multifamily 188 Units 360
P57 Multifamily 56 Units 300
P58 Multifamily 223 Units 240
P59 Multifamily 50 Units 360
C60 Multifamily 70 Units 300
P61 Multifamily 96 Units 360
C62 Multifamily 67 Units 360
C63 Multifamily 81 Units 360
C64 Multifamily 84 Units 360
C65 Multifamily 19 Units 360
C66 Multifamily 50 Units 360
P67 Multifamily 196 Units 240
P68 Multifamily 226 Units 240
C69 Multifamily 85 Units 360
P70 Multifamily 112 Units 300
P71 Multifamily 120 Units 300
P72 Multifamily 19 Units 300
C73 Multifamily 22 Units 360
C74 Multifamily 87 Units 360
P75 Multifamily 193 Units 240
C76 Multifamily 8 Units 360
P77 Multifamily 120 Units 240
P78 Multifamily 40 Units 360
P79 Multifamily 16 Units 300
P80 Multifamily 34 Units 300
C81 Multifamily 72 Units 360
C82 Multifamily 96 Units 300
C83 Multifamily 89 Units 360
C84 Multifamily 56 Units 360
C85 Multifamily 92 Units 360
C86 Multifamily 45 Units 360
C87 Multifamily 34 Units 360
C88 Multifamily 16 Units 360
C89 Multifamily 41 Units 360
C90 Multifamily 50 Units 300
C91 Multifamily 16 Units 360
C92 Multifamily 48 Units 360
C93 Multifamily 34 Units 300
C94 Multifamily 18 Units 360
C95 Multifamily 37 Units 300
C96 Multifamily 17 Units 360
C97 Multifamily 24 Units 300
C98 Multifamily 48 Units 180
C99 Retail 141997 SF 360
C100 Retail 103523 SF 300
P101 Retail 223742 SF 300
C102 Retail 91339 SF 360
P103 Retail 81064 SF 300
P104 Retail 128028 SF 240
C105 Retail 234478 SF 360
C106 Retail 107379 SF 360
P107 Retail 101800 SF 300
P108 Retail 114943 SF 279
C109 Retail 130195 SF 360
C110 Retail 109690 SF 360
P111 Retail 114446 SF 300
P112 Retail 68793 SF 300
P113 Retail 88508 SF 240
C114 Retail 94180 SF 240
C115 Retail 87722 SF 240
C116 Retail 53779 SF 360
C117 Retail 106107 SF 360
C118 Retail 77594 SF 360
C119 Retail 102090 SF 360
C120 Retail 126110 SF 360
C121 Retail 67893 SF 351
C122 Retail 96191 SF 360
C123 Retail 147875 SF 360
P124 Retail 44233 SF 300
C125 Retail 89272 SF 360
P126 Retail 48736 SF 180
C127 Retail 45174 SF 360
P128 Retail 42086 SF 180
P129 Retail 43914 SF 300
C130 Retail 59850 SF 360
C131 Retail 70809 SF 360
P132 Retail 51200 SF 300
C133 Retail 34700 SF 360
P134 Retail 27820 SF 300
C135 Retail 35415 SF 360
P136 Retail 42389 SF 300
C137 Retail 29979 SF 300
C138 Retail 16320 SF 360
C139 Retail 26600 SF 360
C140 Retail 27600 SF 216
C141 Retail 40964 SF 360
C142 Retail 47950 SF 300
C143 Retail 45400 SF 300
C144 Retail 17937 SF 360
C145 Retail 18200 SF 300
C146 Retail 31571 SF 360
P147 Retail 104165 SF 300
P148 Retail 12928 SF 300
C149 Retail 59027 SF 360
C150 Retail 5270 SF 246
C151 Retail 23952 SF 360
C152 Retail 18960 SF 360
P153 Retail 24915 SF 180
P154 Retail 12338 SF 300
P155 Retail 25472 SF 240
P156 Retail 49410 SF 300
P157 Retail 39254 SF 300
P158 Retail 39480 SF 180
C159 Retail 25842 SF 240
P160 Retail 11048 SF 180
P161 Retail 9740 SF 180
P162 Retail 41205 SF 180
P163 Retail 38425 SF 240
C164 Retail 12257 SF 360
C165 Retail 61542 SF 300
C166 Retail 12000 SF 300
C167 Retail 10325 SF 360
C168 Retail 13796 SF 360
C169 Retail 21739 SF 240
C170 Retail 19958 SF 360
C171 Retail 5654 SF 300
C172 Retail 13342 SF 360
C173 Retail 26710 SF 180
C174 Retail 10464 SF 300
C175 Retail 2470 SF 300
P176 Industrial 458075 SF 300
C177 Industrial 266371 SF 300
P178 Industrial 133435 SF 300
C179 Industrial 186560 SF 360
P180 Industrial 73179 SF 300
P181 Industrial 78945 SF 300
C182 Industrial 126630 SF 288
P183 Industrial 182303 SF 300
C184 Industrial 60000 SF 300
P185 Industrial 60000 SF 360
P186 Industrial 57319 SF 240
P187 Industrial 72000 SF 180
P188 Industrial 107568 SF 300
P189 Industrial 134984 SF 300
P190 Industrial 161450 SF 180
C191 Industrial 68564 SF 360
P192 Industrial 55537 SF 300
P193 Industrial 56463 SF 300
P194 Industrial 106524 SF 300
P195 Industrial 73147 SF 300
P196 Industrial 143880 SF 300
C197 Industrial 29562 SF 300
P198 Industrial 36328 SF 360
P199 Industrial 129172 SF 300
P200 Industrial 87229 SF 300
C201 Industrial 78600 SF 240
P202 Industrial 83154 SF 300
P203 Industrial 63660 SF 360
P204 Industrial 82899 SF 300
P205 Industrial 64949 SF 240
P206 Industrial 81809 SF 300
C207 Industrial 47910 SF 360
P208 Industrial 53720 SF 300
C209 Industrial 51232 SF 360
C210 Industrial 24039 SF 300
P211 Industrial 73800 SF 300
C212 Industrial 113520 SF 360
P213 Industrial 93337 SF 240
P214 Industrial 72164 SF 300
P215 Industrial 208382 SF 240
P216 Industrial 75600 SF 300
P217 Industrial 58795 SF 300
P218 Industrial 50331 SF 360
P219 Industrial 62621 SF 240
P220 Industrial 36890 SF 300
P221 Industrial 29219 SF 300
P222 Industrial 80340 SF 300
P223 Industrial 49825 SF 300
P224 Industrial 35040 SF 300
P225 Industrial 77251 SF 180
P226 Industrial 299732 SF 120
C227 Industrial 55230 SF 360
P228 Industrial 40799 SF 300
P229 Industrial 42932 SF 180
C230 Industrial 26367 SF 360
C231 Industrial 16112 SF 360
C232 Industrial 44056 SF 300
C233 Industrial 89092 SF 240
C234 Industrial 9290 SF 300
C235 Office 187875 SF 300
C236 Office 77700 SF 360
C237 Office 86324 SF 360
P238 Office 98610 SF 300
P239 Office 168322 SF 216
P240 Office 50981 SF 300
P241 Office 35546 SF 240
C242 Office 52600 SF 360
P243 Office 38128 SF 300
P244 Office 72706 SF 240
P245 Office 51332 SF 300
P246 Office 35971 SF 300
P247 Office 46899 SF 240
C248 Office 17529 SF 360
P249 Office 34807 SF 300
C250 Office 31166 SF 360
P251 Office 35357 SF 300
C252 Office 19779 SF 360
C253 Office 45116 SF 300
C254 Office 15304 SF 300
P255 Office 39470 SF 300
C256 Office 32338 SF 360
P257 Office 26898 SF 300
P258 Office 53508 SF 240
P259 Office 13055 SF 180
C260 Office 11300 SF 360
C261 Office 15574 SF 360
P262 Office 35244 SF 300
P263 Office 30307 SF 240
P264 Office 95285 SF 355
P265 Office 25297 SF 300
P266 Office 10600 SF 360
P267 Office 27194 SF 360
C268 Office 22090 SF 360
C269 Office 11392 SF 300
C270 Office 16023 SF 360
C271 Office 30574 SF 360
C272 Office 23896 SF 300
C273 Office 36694 SF 360
C274 Office 10392 SF 300
C275 Office 15091 SF 360
P276 Health Care 164 Beds 300
C277 Health Care 146 Beds 300
C278 Health Care 120 Beds 300
C279 Health Care 120 Beds 300
P280 Health Care 200 Beds 240
P281 Health Care 122 Beds 300
C282 Health Care 59 Beds 300
C283 Health Care 126 Beds 300
P284 Health Care 94 Beds 300
P285 Health Care 76 Beds 300
P286 Health Care 120 Beds 240
C287 Health Care 56 Beds 300
P288 Health Care 100 Beds 300
P289 Mobile Home 285 Pads 300
P290 Mobile Home 177 Pads 300
P291 Mobile Home 201 Pads 300
P292 Mobile Home 167 Pads 300
P293 Mobile Home 220 Pads 300
P294 Mobile Home 185 Pads 300
P295 Mobile Home 244 Pads 240
P296 Mobile Home 160 Pads 300
P297 Mobile Home 125 Pads 300
P298 Mobile Home 167 Pads 300
P299 Mobile Home 129 Pads 300
P300 Mobile Home 109 Pads 300
C301 Mobile Home 78 Pads 300
P302 Mini Storage 51590 SF 300
P303 Mini Storage 89895 SF 300
P304 Mini Storage 76970 SF 300
P305 Mini Storage 93390 SF 180
P306 Mini Storage 59909 SF 300
C307 Mini Storage 94670 SF 300
P308 Mini Storage 82964 SF 300
C309 Mini Storage 36720 SF 360
C310 Mini Storage 52525 SF 360
P311 Mini Storage 40290 SF 240
C312 Mini Storage 49571 SF 360
P313 Mini Storage 175992 SF 240
P314 Mini Storage 68014 SF 180
C315 Mini Storage 56729 SF 360
C316 Mini Storage 43256 SF 360
C317 Mini Storage 12394 SF 360
C318 Mini Storage 46278 SF 300
C319 Mini Storage 29775 SF 300
P320 Special Purpose 81344 SF 180
P321 Special Purpose 38253 SF 180
P322 Special Purpose 65899 SF 240
P323 Special Purpose 40070 SF 161
P324 Special Purpose 37850 SF 285
P325 Special Purpose 41000 SF 180
P326 Special Purpose 48590 SF 240
P327 Special Purpose 40000 SF 300
P328 Special Purpose 21412 SF 240
P329 Hotel 70 Rooms 240
P330 Hotel 88 Rooms 240
P331 Mixed Use 107084 SF 300
</TABLE>
* "C" denotes Conduit Mortgage Loans and "P" Portfolio Mortgage Loans.
<PAGE>
SCHEDULE II
EXCEPTIONS TO PORTFOLIO MORTGAGE LOAN REPRESENTATION (IV)
None.
<PAGE>
SCHEDULE III
EXCEPTIONS TO PORTFOLIO MORTGAGE LOAN REPRESENTATION (V)
Loan No. Description
- -------- -----------
2021657 State Tax Lien recorded 8 August 1994 in the amount
of $3,204.76.
3000890 County Tax Lien recorded 11 May 1995 in the amount
of $2,178.91. State Tax Lien recorded 12 September
1996 in the amount of $1,815.00.
3006491 County Tax Lien recorded 11 July 1995 in the amount
of $256.48.
3006681 County Tax Lien recorded 19 June 1995 in the amount
of $307.96.
3009370 Notice and Claim of Mechanics, Professional
Services, Materialman's Liens (Two).
3039450 Judgment/Lien by George Gill Construction against
MBM Group filed 29 April 1996 in the amount of
$54,979.01.
<PAGE>
SCHEDULE IV
CERTAIN MORTGAGE LOANS COVERED IN PORTFOLIO MORTGAGE LOAN REPRESENTATION (V)
- --------------------------------------------------------------------------------
PROPERTY PROPERTY
LOAN# NAME TYPE
- --------------------------------------------------------------------------------
3022993 L.A. Fitness Sports Club Other
- --------------------------------------------------------------------------------
3011822 Las Vegas Athletic Club Other
- --------------------------------------------------------------------------------
1867084 Oskoui Health Club Portfolio Other
- --------------------------------------------------------------------------------
4540613 Inn at the Market Hotel
- --------------------------------------------------------------------------------
2092120 Best Western Anaheim Inn Hotel
- --------------------------------------------------------------------------------
1865559 Carson Oaks Health Care
- --------------------------------------------------------------------------------
4544128 Life Care Center of Escondido Health Care
- --------------------------------------------------------------------------------
3101599 Olympics West Retirement Center Health Care
- --------------------------------------------------------------------------------
4545786 Merrill Gardens at Northgate Health Care
- --------------------------------------------------------------------------------
4547840 The Weatherly Inn Health Care
- --------------------------------------------------------------------------------
3048741 Hearthstone Cottage of Ellensburg Health Care
- --------------------------------------------------------------------------------
3032034 Highline Convalescent Center Health Care
- --------------------------------------------------------------------------------
50946 Chateau Marymoor Retirement Health Care
- --------------------------------------------------------------------------------
50803 Fairfield Manor Nursing Home Health Care
- --------------------------------------------------------------------------------
51501 Hamilton Plaza Nursing Home Health Care
- --------------------------------------------------------------------------------
50330 Powell Valley Assisted Living Center Health Care
- --------------------------------------------------------------------------------
51500 Cliff Rehab and Nursing Center Health Care
- --------------------------------------------------------------------------------
51499 Park Manor Nursing Home Health Care
- --------------------------------------------------------------------------------
3103405 Act III Theatre Other
- --------------------------------------------------------------------------------
<PAGE>
SCHEDULE V
EXCEPTIONS TO PORTFOLIO MORTGAGE LOAN REPRESENTATION (VI)
Loan No. Property Description
- -------- -------- -----------
The liens listed in Schedule III are hereby incorporated by reference into this
Schedule V as exceptions to Portfolio Mortgage Loan Representation (vi).
<PAGE>
SCHEDULE VI
EXCEPTIONS TO PORTFOLIO MORTGAGE LOAN REPRESENTATION (XIII)
Loan No. Property Description
- -------- -------- -----------
1867084 Columbia Athletic Club Required Coverage is 80%
of replacement cost
3012937 Waterfront Plaza Required Coverage is 90%
of replacement cost
4547840 Weatherly Inn Partnership Required Coverage is 80%
of replacement cost
<PAGE>
SCHEDULE VII
EXCEPTIONS TO PORTFOLIO MORTGAGE LOAN REPRESENTATION (XVII)
The tax liens referenced in Schedule III are hereby incorporated by reference
into this Schedule VII as exceptions to Portfolio Mortgage Loan Representation
(xvii).
<PAGE>
SCHEDULE VIII
EXCEPTIONS TO PORTFOLIO MORTGAGE LOAN REPRESENTATION (XXII)
Loan No. Description
- -------- -----------
3039450 Judgment/Lien by George Gill Construction against
MBM Group filed 29 April 1998 in the amount of
$54,979.01.
<PAGE>
SCHEDULE IX
EXCEPTIONS TO PORTFOLIO MORTGAGE LOAN REPRESENTATION (XXVIII)
Loan No. Property Description
- -------- -------- -----------
None.
<PAGE>
SCHEDULE X
EXCEPTIONS TO PORTFOLIO MORTGAGE LOAN REPRESENTATION (XXXVIII)
Loan No. Property Description
- -------- -------- -----------
3015526 E-Z Storage Pico Condemnation proceeds
less than $50,000 belong
to the borrower.
3009024 River Park Apartments Borrower permitted to
retain $10,000 from
$33,000 in condemnation
proceeds (other $23,000
applied as prepayment of
loan without premium or
penalty).
<PAGE>
SCHEDULE XI
EXCEPTIONS TO PORTFOLIO MORTGAGE LOAN REPRESENTATION (XLII)
Loan No. Property Description
- -------- -------- -----------
1202811 Limited recourse only.
<PAGE>
SCHEDULE XII
EXCEPTIONS TO PORTFOLIO MORTGAGE LOAN REPRESENTATION (XLIV)
Loan No. Property Description
- -------- -------- -----------
3009594 Joel H. & Margaret D. Heath The Loan Agreement
allows transfers to the
borrower's spouse or
lineal descendants.
1201300 McGrath Highlands The Deed of Trust allows
transfers to listed
family members or an
entity owned by a listed
family member.
<PAGE>
SCHEDULE XIII
EXCEPTIONS TO PORTFOLIO MORTGAGE LOAN REPRESENTATION (XLVII)
Loan Number Date of Inspection
0003047925 12/15/97
0003046208 12/8/97
0003039450 12/1/97
0003041399 12/1/97
0003039914 9/23/97
0001795863 9/17/97
0003046620 9/16/97
0003032786 9/15/97
0003038502 9/15/97
0003032406 9/12/97
0003032760 9/2/97
0003040078 8/12/97
0003051141 8/1/97
0003048741 5/14/97
0004547972 5/14/97
0003033792 4/14/97
0003032034 3/11/97
0003103405 3/10/97
0003021920 2/1/97
0003034873 1/30/97
<PAGE>
SCHEDULE XIV
EXCEPTIONS TO PORTFOLIO MORTGAGE LOAN REPRESENTATION (XLIX)
Loan No. Property Description
- -------- -------- -----------
2053130 Does not allow
collection of rent rolls
and operating statements.
162025 Silent as to collection
of rent rolls and
operating statements.
<PAGE>
SCHEDULE XV
EXCEPTIONS TO PORTFOLIO MORTGAGE LOAN REPRESENTATION (L)
Loan No. Property Description
- -------- -------- -----------
3024635 Folsom Lake Auto Mall There is an encroachment
(Folsom Lake Ford) of the building on the
setback lines.
<PAGE>
SCHEDULE XVI
EXCEPTIONS TO PORTFOLIO MORTGAGE LOAN REPRESENTATION (LIX)
- --------------------------------------------------------------------------------
Loan Number Property Additional Information
- --------------------------------------------------------------------------------
1865195 Trailside Apartments The loan documents are silent, except
the Deed of Trust prohibits governmental
or statutory liens.
- --------------------------------------------------------------------------------
1867084 Columbia Athletic Club The loan documents are silent, except
the Deed of Trust prohibits governmental
or statutory liens.
- --------------------------------------------------------------------------------
3048741 Hearthstone The loan documents are silent, except
the Deed of Trust prohibits governmental
or statutory liens.
- --------------------------------------------------------------------------------
3051505 Lake Vue Gardens Care The loan documents are silent, except
Center the Deed of Trust prohibits governmental
or statutory liens.
- --------------------------------------------------------------------------------
4540613 Inn at the Market The loan documents are silent, except
the Deed of Trust prohibits governmental
or statutory liens.
- --------------------------------------------------------------------------------
4544128 Life Care Center of The loan documents are silent, except
Escondido the Deed of Trust prohibits governmental
or statutory liens.
- --------------------------------------------------------------------------------
4547840 Weatherly Inn The loan documents are silent, except
Partnership the Deed of Trust prohibits governmental
or statutory liens.
- --------------------------------------------------------------------------------
3008489 Conference Claimants The Loan Agreement allows additional
liens/secured liabilities up to
$1,000,000 without lender's consent.
The Mortgage requires lender's consent
in all cases.
- --------------------------------------------------------------------------------
3026820 Watercourt at Westlake The loan documents do not contain any
Village provision with respect to subordinate
financing.
- --------------------------------------------------------------------------------
4539961 Lakes Medical Plaza The loan documents do not contain any
provision with respect to subordinate
financing.
- --------------------------------------------------------------------------------
<PAGE>
SCHEDULE XVII
EXCEPTIONS TO CONDUIT MORTGAGE LOAN REPRESENTATION (V)
Loan Number Description
- ----------- -----------
51392 Unpaid Bronx County, New York Real
Estate Taxes in the amount of
$29,479.68, delinquent as of July 1,
1999.
<PAGE>
SCHEDULE XVIII
EXCEPTIONS TO CONDUIT MORTGAGE LOAN REPRESENTATION (XIV)
Cut-off Original Phase 1 Update Phase 1
Loan Number Balance Date of Rpt Date of Rpt.
----------- ------- ----------- ------------
50154 $4,356,929 10/9/96 9/10/97
50311 $4,357,456 6/29/97
50330 $8,331,364 7/3/97
50233 $11,361,004 7/10/97 1/18/97
50378 $1,814,714 7/16/97
50292 $4,140,148 8/12/97
50401 $1,722,824 9/26/97
50389 $12,510,253 10/13/97 11/6/97
50402 $3,508,377 10/15/97
50523 $6,362,960 11/4/97
50372 $13,307,172 11/6/97
50731 $2,765,675 11/6/97 12/4/97
50803 $3,953,289 12/31/97
<PAGE>
SCHEDULE XIX
EXCEPTIONS TO CONDUIT MORTGAGE LOAN REPRESENTATION (XLIII)
Loan No. Property Description
- -------- -------- -----------
50885 Paducah Towne Center The Agreement of Limited
Partnership refers to
"Land" other than the
Mortgaged Property.
<PAGE>
SCHEDULE XX
EXCEPTIONS TO CONDUIT MORTGAGE LOAN REPRESENTATION (XLVI) (C)
None.
<PAGE>
SCHEDULE XXI
EXCEPTIONS TO CONDUIT MORTGAGE LOAN REPRESENTATION (XLVIII)(B)
Loan No. Property Description
- -------- -------- -----------
51186 Nokia Office Warehouse Referenced provision in
the Ground Lease but
struck from the Estoppel
Certificate.
<PAGE>
SCHEDULE XXII
EXCEPTIONS TO CONDUIT MORTGAGE LOAN REPRESENTATION (XLVIII)(C)
Loan No. Property Description
- -------- -------- -----------
51186 Nokia Office Warehouse Ground Lease is silent
as to referenced matters.
<PAGE>
SCHEDULE XXIII
EXCEPTIONS TO CONDUIT MORTGAGE LOAN REPRESENTATION (XLVIII)(J)
Loan No. Property Description
- -------- -------- -----------
51171 3rd Street Plaza Shopping Rent increased
Center incrementally each year.
51186 Nokia Office Warehouse Rent is adjusted at 10th
year and every 5th year
thereafter based on fair
market value.
<PAGE>
SCHEDULE XXIV
EXCEPTIONS TO CONDUIT MORTGAGE LOAN REPRESENTATION (LX)
Loan No. Property Description
- -------- -------- -----------
51306 Best Buy Building The Mortgage allows a
one time right to
transfer the Mortgaged
Property to anyone and a
two time right to
transfer the Mortgaged
Property to an affiliate.
51333 Office Max Building The Mortgage allows a
one time right to
transfer the Mortgaged
Property to anyone and a
two time right to
transfer the Mortgaged
Property to an affiliate.
51278 South Hill Village The Mortgage allows a
Shopping Center one time right to
transfer the Mortgaged
Property under certain
conditions.
51374 123 East Alma Avenue The Mortgage allows a
one time transfer to the
Mortgaged Property under
certain conditions.
50372 Gessner Apartments The Mortgage allows the
Portfolio transfer of the
Mortgaged Property under
certain conditions.
51332 SRS - 101 Ygnacio Plaza The Mortgage allows a
one-time broad right to
transfer to anyone
provided such assignee
would qualify as a
mortgagee.
<PAGE>
SCHEDULE XXV
SCHEDULE OF MORTGAGE LOANS UNDER SECTION 3.08(E)
Loan No. Description Loan Amount
- -------- ----------- -----------
1796705 Meadowbrook Mobile Home Estates (date down shows $400,000.00
Gideon Golstein) Secondary
Financing
3008489 American River Commons Apartments $1,500,000.00
Secondary
Financing
3043486 College Place Mobile Home Park (date down shows $999,832.00
William M. Goodwin) Secondary
Financing
<PAGE>
SCHEDULE XXVI
SUB-SERVICING AGREEMENTS IN EFFECT
AS OF THE CLOSING DATE
BANK OF AMERICA, 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 Bank of America, N.A. (successor
in interest to 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, 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, N.A. (successor in interest to Bank of
America NT&SA) and as supplemented by the Confirmation thereto dated August 17,
1999.
Subservicers
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ARCS Commercial Mortgage Co., L.P., a California limited partnership
Bank of America, N.A.
Berkshire Mortgage Finance Corporation
First Security Bank, N.A.
L.J. Melody & Company
Patrician Financial Company Limited Partnership
WMF Washington Mortgage Corp.
