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BANC OF AMERICA COMMERCIAL MORTGAGE INC.,
Depositor,
BANK OF AMERICA, N.A.,
Mortgage Loan Seller,
HVB REALTY CAPITAL INC.
Mortgage Loan Seller,
ORIX REAL ESTATE CAPITAL MARKETS, LLC,
Master Servicer,
LENNAR PARTNERS, INC.,
Special Servicer,
and
WELLS FARGO BANK MINNESOTA, N.A.,
Trustee and REMIC Administrator,
---------------------------------
AMENDED AND RESTATED
POOLING AND SERVICING AGREEMENT
Dated as of October 1, 2000
(Amending and Restating the Pooling and Servicing Agreement
dated as of September 1, 2000)
---------------------------------
Commercial Mortgage Pass-Through Certificates
Series 2000-2
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<PAGE>
TABLE OF CONTENTS
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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 and Loan REMIC Interests.......
SECTION 2.02 Acceptance of REMIC I by Trustee............................
SECTION 2.03 Mortgage Loan Sellers' 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
Sellers.....................................................
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 Trustee.....................................
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 and Class MA-2
Uncertificated Interests; Acceptance of such Interests
by the Trustee..............................................
SECTION 2.13 Issuance of the Class R-IIU Certificates; Creation of
the REMIC IIU Regular Interests.............................
SECTION 2.14 Conveyance of the Class UA-1, Class UA-2, Class MB,
Class MC, Class MD, Class ME, Class MF and Class MG
Uncertificated Interests; Acceptance of such Interests
by the Trustee..............................................
SECTION 2.15 Issuance of the REMIC III 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 IIU
Distribution Account and the REMIC III 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 Defaulted 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 Maintenance of 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....................................
SECTION 4.06 The Excess Interest Distribution 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 SELLERS, THE MASTER SERVICER,
THE SPECIAL SERVICER AND THE REMIC ADMINISTRATOR
SECTION 6.01 Liability of the Depositor, the Mortgage Loan Sellers,
the Master Servicer, the Special Servicer and the REMIC
Administrator...............................................
SECTION 6.02 Merger, Consolidation or Conversion of the Depositor,
the Mortgage Loan Sellers, 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 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 AND GRANTOR TRUST 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...............................................
SECTION 10.05 Grantor Trust Administration................................
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.................
SECTION 11.11 Forum.......................................................
SECTION 11.12 Waiver of Jury Trial........................................
<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 X Certificate
EXHIBIT A-4 Form of Class B Certificate
EXHIBIT A-5 Form of Class C Certificate
EXHIBIT A-6 Form of Class D Certificate
EXHIBIT A-7 Form of Class E Certificate
EXHIBIT A-8 Form of Class F Certificate
EXHIBIT A-9 Form of Class G Certificate
EXHIBIT A-10 Form of Class H Certificate
EXHIBIT A-11 Form of Class J Certificate
EXHIBIT A-12 Form of Class K Certificate
EXHIBIT A-13 Form of Class L Certificate
EXHIBIT A-14 Form of Class M Certificate
EXHIBIT A-15 Form of Class N Certificate
EXHIBIT A-16 Form of Class O Certificate
EXHIBIT A-17 Form of Class P Certificate
EXHIBIT A-18 Form of Class R-I Certificate
EXHIBIT A-19 Form of Class R-II Certificate
EXHIBIT A-20 Form of Class V Certificate
EXHIBIT A-21 Form of Class R-IIU Certificate
EXHIBIT A-22 Form of Class R-III Certificate
EXHIBIT B Form of Investment Representation Letter
EXHIBIT C-1 Form of Transfer Affidavit and Agreement Pursuant to
Section 5.02(d)(i)(B)
EXHIBIT C-2 Form of Transferor Certificate Pursuant to
Section 5.02(d)(i)(D)
EXHIBIT D Request for Release
EXHIBIT E Form of REO Status Report
EXHIBIT F Form of ERISA Representation Letter
EXHIBIT G Form of Interim Custodial Certification
EXHIBIT H Form of Final Custodial Certification
EXHIBIT I Form of Operating Statement Analysis Report
EXHIBIT J Form of Servicer Watch List
EXHIBIT K Form of NOI Adjustment Worksheet
EXHIBIT L Environmental Policy
EXHIBIT M Request for Review
EXHIBIT N Form of CMSA Property File
EXHIBIT O Form of CMSA Financial File
EXHIBIT P Form of Comparative Financial Status Report
EXHIBIT Q Form of Loan Periodic Update File
EXHIBIT R Form of Historical Modification Report
EXHIBIT S Form of Historical Liquidation Report
EXHIBIT T Form of CMSA Loan Set Up File
EXHIBIT U Form of Delinquent Loan Status Report
SCHEDULE I Mortgage Loan Schedule
SCHEDULE II Bank of America, N.A. Sub-Servicing Agreements in Effect as
of the Original Closing Date
SCHEDULE III Schedule of Exceptions under Section 2.02(a)
SCHEDULE 9 Exception to Section 2.05(c)(ix)
SCHEDULE 15 Exception to Section 2.05(c)(xv)
SCHEDULE 18 Exception to Section 2.05(c)(xviii)
SCHEDULE 21 Exception to Section 2.05(c)(xxi)
SCHEDULE 27 Exception to Section 2.05(c)(xxvii)
SCHEDULE 29 Exception to Section 2.05(c)(xxix)
SCHEDULE 35 Exception to Section 2.05(c)(xxxv)
SCHEDULE 44 Exception to Section 2.05(c)(xliv)
SCHEDULE 48 Exception to Section 2.05(c)(xlviii)
SCHEDULE 53 Exception to Section 2.05(c)(liii)
SCHEDULE 54 Exception to Section 2.05(c)(liv)
SCHEDULE 63 Exception to Section 2.05(c)(lxiii)
<PAGE>
This Amended and Restated Pooling and Servicing Agreement (this
"Agreement"), is dated and effective as of September 1, 2000, among BANC OF
AMERICA COMMERCIAL MORTGAGE INC., as Depositor, BANK OF AMERICA, N.A., as
Mortgage Loan Seller, HVB REALTY CAPITAL INC., as Mortgage Loan Seller, ORIX
REAL ESTATE CAPITAL MARKETS, LLC, as Master Servicer, Lennar Partners, Inc., as
Special Servicer, and WELLS FARGO BANK MINNESOTA, N.A., as Trustee and as REMIC
Administrator.
PRELIMINARY STATEMENT:
This Agreement, dated and effective as of October 1, 2000, amends
and restates the Pooling and Servicing Agreement, dated as of October 1, 2000
Banc of America Commercial Mortgage Inc., as Depositor, Bank of America, N.A.,
as Mortgage Loan Seller, HVB Realty Capital Inc., as Mortgage Loan Seller, ORIX
Real Estate Capital Markets, LLC, as Master Servicer, Lennar Partners, Inc., as
Special Servicer, and Wells Fargo Bank Minnesota, N.A., 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-1 Certificates, Class A-2 Certificates,
Class B Certificates, Class C Certificates, Class D Certificates, Class E
Certificates, Class F Certificates, Class G Certificates 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) resetting the principal balance and/or the pass-through rates to
the Class A-1, Class A-2, Class X, Class B, Class C, Class D, Class E, Class F,
Class G and Class X Certificates, (ii) making, in connection with such
restructuring, two additional REMIC elections with respect to the Trust Fund and
(iii) providing for the book-entry registration of the newly created Classes of
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 November 2000, and the changes made hereby are effective in respect of
such Distribution Date for the full related Interest Accrual Period that began
October 1, 2000.
The Depositor issued the Original Certificates on September 1, 2000
pursuant to the Original Pooling Agreement. Interests in the Trust established
by the Original Pooling Agreement corresponding to the Class A-1, Class A-2,
Class B, Class C, Class D, Class E, Class F, Class G and Class X being issued
under this Agreement (the "New Certificates") were issued to the Mortgage Loan
Sellers in partial consideration for the Mortgage Loans. Pursuant to this
amendment, effective on the Sequel Closing Date, the Mortgage Loan Sellers 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-IIU Certificates and Class R-III Certificates.
No changes to the Original Pooling Agreement are made hereby, with respect to
the Class H, Class J, Class, K, Class L, Class M, Class N, Class O and Class P
Certificates (the "Unaffected Certificates") and the Class V, Class R-I and
Class R-II Certificates, and in this and every other respect, except as
expressly amended hereby, the Original Pooling Agreement continues in full force
and effect as amended and restated hereby. The New Certificates, together with
the Unaffected Certificates, the Class V Certificates and the Residual
Certificates, collectively, evidence the entire beneficial ownership interest in
the Trust.
It is the intention of the parties, and each of the parties hereto
acknowledges, that this amendment and restatement of the Original Pooling
Agreement shall 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.), Berkshire
Mortgage Finance Bethesda Limited Partnership (successor in interest to
Patrician Financial Company Limited Partnership) and Prudential MultiFamily
Mortgage, Inc. (successor in interest to Washington Mortgage Financial Group.
Ltd.), as supplemented by Sub-Servicer 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 September 22, 2000,
executed by the Sub-Servicers listed on Schedule III.
As provided herein, the Trustee will elect that the Trust Fund,
exclusive of the Excess Interest and the Excess Interest Distribution Account
and the Loan REMIC Residual Interests be treated for federal income tax purposes
as six separate real estate mortgage investment conduits ("REMIC I," "REMIC II,"
"REMIC IIU," "REMIC III," and the two Loan REMICs described herein,
respectively). The Class A-1, Class A-2, Class B, Class C, Class D, Class E,
Class F, Class G and Class X Certificates constitute "regular interests" in
REMIC III, and the Class R-III Certificates constitute the sole Class of
"residual interest" in REMIC III for purposes of the REMIC Provisions. The Class
UA-1 and Class UA-2 Uncertificated Interests constitute "regular interests" in
REMIC IIU, and the Class R-IIU Certificates constitute the sole Class of
"residual interest" in REMIC IIU for purposes of the REMIC Provisions. The Class
H, Class J, Class K, Class L, Class M, Class N, Class O and Class P Certificates
and the Class MA-1, Class MA-2, Class MB, Class MC, Class MD, Class ME, Class
MF, Class MG 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 LB, Class LC, Class LD, Class LE, Class LF,
Class LG, Class LH, Class LJ, Class LK, Class LL, Class LM, Class LN, Class LO
and Class LP 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 Depositor
intends that HVB Loan No. 510238 and HVB Loan No. 540310 each be held as an
asset of a single Loan REMIC (collectively, the "Loan REMICs"), that the Loan
REMIC Regular Interests be held as assets of REMIC I, and that the Loan REMIC
Residual Interests be held by the Trustee on behalf of the Holders of the Class
R-I Certificates. The portion of the Trust Fund consisting of the Excess
Interest, the Excess Interest Distribution Account and the Loan REMIC Residual
Interests shall be treated as a grantor trust (the "Grantor Trust") for federal
income tax purposes. The Class V Certificates will represent beneficial
interests in the portion of the Grantor Trust representing the Excess Interest
and the Excess Interest Distribution Account for federal income tax purposes.
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:
Initial Class
Designation Pass-Through Rate Principal Balance
----------- ----------------- -----------------
Class A-1 7.0200% per annum $198,316,225
Class A-2 7.1970% per annum(1) $477,137,063
Class X Variable(2) $889,004,533(7)
Class B 7.3780% per annum(1) $ 37,816,366
Class C 7.4380% per annum(1) $ 24,469,413
Class D 7.5160% per annum(1) $ 17,795,938
Class E 7.6340% per annum(1) $ 8,897,968
Class F 7.9170% per annum(1) $ 11,122,461
Class G 8.1599% per annum(4) $ 17,795,937
Class H 8.2999% per annum(5) $ 11,122,460
Class J 7.00% per annum $ 34,479,629
Class K 7.00% per annum(1) $ 5,561,230
Class L 7.00% per annum(1) $ 6,673,476
Class M 7.00% per annum(1) $ 2,224,492
Class N 7.00% per annum(1) $ 6,673,477
Class O 7.00% per annum(1) $ 4,448,984
Class P 7.00% per annum(1) $ 24,469,414
---------------------------------
(1) Initial Pass-Through Rate. The Pass-Through Rate for the Class A-2, Class
B, Class C, Class D, Class E, Class F, Class K, Class L, Class M, Class N,
Class O and Class P Certificates for each Distribution Date shall not
exceed the Weighted Average Adjusted Net Mortgage Rate for such
Distribution Date.
(2) Calculated in accordance with the definition of "Class X Pass-Through
Rate".
(3) 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.
(4) Initial Pass-Through Rate. The Pass-Through Rate for the Class G
Certificates for each Distribution Date shall equal the Weighted Average
Adjusted Net Mortgage Rate for such Distribution Date minus 0.14% per
annum.
(5) Initial Pass-Through Rate. The Pass-Through Rate for the Class H
Certificates for each Distribution Date shall equal the Weighted Average
Adjusted Net Mortgage Rate for such Distribution Date.
<PAGE>
The following table sets forth the designation, the initial
Uncertificated Principal Balances and per annum rates of interest for the REMIC
I Regular Interests:
REMIC I Initial
Regular Interest REMIC I Uncertificated
Designation Remittance Rate Principal Balance
----------- --------------- -----------------
Class LA-1 (1) $194,582,709
Class LA-2 (1) $481,662,899
Class LB (1) $ 37,816,366
Class LC (1) $ 24,469,413
Class LD (1) $ 17,795,938
Class LE (1) $ 8,897,968
Class LF (1) $ 11,122,461
Class LG (1) $ 17,795,937
Class LH (1) $ 11,122,460
Class LJ (1) $ 34,479,629
Class LK (1) $ 5,561,230
Class LL (1) $ 6,673,476
Class LM (1) $ 2,224,492
Class LN (1) $ 6,673,477
Class LO (1) $ 4,448,984
Class LP (1) $ 24,469,414
---------------------------------
(1) The REMIC I Remittance Rate for each Class of REMIC I Regular Interests is
the Weighted Average Adjusted Net Mortgage Rate.
<PAGE>
The following table sets forth the designation, the initial
Uncertificated Principal Balance and per annum rates of interest for the REMIC
II Uncertificated Regular Interests as of the Sequel Closing Date:
REMIC II Uncertificated
Regular Interest REMIC II Initial Uncertificated
Designation Remittance Rate Principal Balance
----------- --------------- -----------------
Class MA-1 (1) $194,582,709
Class MA-2 (1) $481,662,899
Class MB (1) $ 37,816,366
Class MC (1) $ 24,469,413
Class MD (1) $ 17,795,938
Class ME (1) $ 8,897,968
Class MF (1) $ 11,122,461
Class MG (1) $ 17,795,937
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.
<PAGE>
The following table sets forth the designation, the initial
Uncertificated Principal Balances and per annum rates of interest for the REMIC
IIU Regular Interests as of the Sequel Closing Date:
REMIC IIU Initial
Regular Interest REMIC IIU Uncertificated
Designation Remittance Rate Principal Balance
----------- --------------- -----------------
Class UA-1 (1) $198,316,225
Class UA-2 (1) $477,137,063
---------------------------------
(1) The REMIC IIU Remittance Rate for each Class of REMIC IIU Regular Interests
is the Weighted Average Adjusted Net Mortgage Rate.
The Class R-I, Class R-II, Class R-IIU and Class R-III Certificates
will be Residual Certificates bearing no Pass-Through Rate and having no initial
Certificate Principal Balances or notional amounts. Any Available Distribution
Amount constituting assets of the Loan REMICs or remaining in the REMIC I
Distribution Account after distributing the REMIC I Distribution Amount 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, if any,
remaining in the Loan REMICs or the REMIC I Distribution Account, as
applicable).
In consideration of the mutual agreements herein contained, the
Depositor, the Mortgage Loan Sellers, 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 Certificates outstanding immediately prior to such
Distribution Date. The Accrued Certificate Interest in respect of any Class of
REMIC II Regular Certificates for any Distribution Date shall be deemed to have
accrued during the applicable Interest Accrual Period.
"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 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 (or, in the case of an ARD Loan after its Anticipated
Repayment Date, if such rate is less, the related Net Mortgage Rate in effect
for such Mortgage Loan immediately prior to its Anticipated Repayment Date).
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. In the case of HVB Loan No. 510238
and HVB Loan No. 540310, "Mortgage Loan" shall refer to the related Loan REMIC
Regular Interests for purposes of this definition.
"Administrative Fee Rate": With respect to each Mortgage Loan and
REO Loan, as specified in the Mortgage Loan Schedule, being 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 the Loan REMICs,
REMIC I, REMIC II, REMIC IIU and REMIC III, either (i) the endangerment of the
status of such REMIC as a REMIC or (ii), except as permitted by Section 3.17(a),
the imposition of a tax upon such REMIC or any of its assets or transactions
(including, without limitation, the tax on prohibited transactions as defined in
Section 860F(a)(2) of the Code and the tax on certain contributions set forth in
Section 860G(d) of the Code).
"Affiliate": With respect to any specified Person, any other Person
controlling or controlled by or under common control with such specified Person.
For the purposes of this definition, "control" when used with respect to any
specified Person means the power to direct the management and policies of such
Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise and the terms "controlling" and
"controlled" have the meanings correlative to the foregoing.
"Agreement": This Pooling and Servicing Agreement, together with
all amendments hereof and supplements hereto.
"Anticipated Repayment Date": With respect to any ARD Loan, the date
specified on the related Mortgage Note, as of which Excess Interest shall begin
to accrue on such Mortgage Loan, which date is prior to the Stated Maturity Date
for such Mortgage Loan.
"Applicable State Law": For purposes of Article X, the Applicable
State Law shall be (a) the laws of the State of New York, (b) the laws of the
states in which the Corporate Trust Office of the Trustee and the Primary
Servicing Offices of the Master Servicer and the Special Servicer are located,
(c) the laws of the states in which any Mortgage Loan documents are held and/or
any REO Properties are located, (d) such other state and local law whose
applicability shall have been brought to the attention of the REMIC
Administrator by either (i) an Opinion of Counsel delivered to it or (ii)
written notice from the appropriate taxing authority as to the applicability of
such state law, and (e) such other state or local law as to which the REMIC
Administrator has actual knowledge of applicability.
"Appraisal": With respect to any Mortgaged Property or REO Property
as to which an appraisal is required to be performed pursuant to the terms of
this Agreement, a narrative appraisal complying with USPAP (or, in the case of
Mortgage Loans and REO Loans with a Stated Principal Balance as of the date of
such appraisal of $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 Master Servicer or the Special Servicer, as the case
may be, and (b) the earliest of the relevant dates in respect of such Required
Appraisal Loan specified in the first sentence of Section 3.19(b) hereof, and
(ii) as of each Determination Date following each anniversary of such Required
Appraisal Loan's becoming a Required Appraisal Loan 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
(excluding, in the case of an ARD Loan after its Anticipated Repayment Date,
Excess 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 and net of any reserves for debt service coverage, capital
expenditures and replacement reserves), 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 25% 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.
"ARD Loan": Any Mortgage Loan identified on the Mortgage Schedule as
such pursuant to clause (xviii) under the definition of Mortgage Loan Schedule.
"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),
together with any collateral therefor (including without limitation
securities) in the Mortgage Loan Sellers' possession, 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 (exclusive, in the case of an ARD Loan after its Anticipated Repayment
Date, of Excess Interest) in accordance with its terms, and to pay principal in
accordance with the amortization schedule (if any), in effect immediately prior
to, and without regard to the occurrence of, its most recent scheduled maturity
date (as such terms and amortization schedule may have been modified, and such
maturity date may have been extended, in connection with a bankruptcy or similar
proceeding involving the related Mortgagor or a modification, waiver or
amendment of such Mortgage Loan granted or agreed to by the Master Servicer or
Special Servicer pursuant to Section 3.20). With respect to any REO Loan, for
any Due Date therefor as of which the related REO Property remains part of the
Trust Fund, the scheduled monthly payment of principal and/or interest deemed to
be due in respect thereof on such Due Date equal to the Monthly Payment that was
due (or, in the case of a Balloon Mortgage Loan described in the preceding
sentence of this definition, the Assumed Monthly Payment that was deemed due) in
respect of the related Mortgage Loan on the last Due Date prior to its becoming
an REO Loan.
"Available Distribution Amount": With respect to any Distribution
Date, an amount equal to (a) the balance on deposit in the Distribution Account
as of 11:30 a.m. (New York City time) on such Distribution Date (or such later
time on such date as of which distributions are made on the Certificates),
including, without limitation, if and to the extent on deposit therein as of
such time, the Master Servicer Remittance Amount for the related Master Servicer
Remittance Date, any P&I Advances made by the Master Servicer or the Trustee to
cover uncollected Monthly Payments due and/or Assumed Monthly Payments deemed
due during the related Collection Period, any payments made by the Master
Servicer to cover Prepayment Interest Shortfalls incurred during the related
Collection Period, and 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)
Excess Interest, (v) 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), (vi) any amounts deposited in the Distribution Account in error, and
(vii) 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)(vii)
of this definition.
"BACM": Banc of America Commercial Mortgage Inc., or its successor
in interest.
"Balloon Mortgage Loan": Any Mortgage Loan that by its original
terms or by virtue of any modification entered into as of the Original Closing
Date provides for an amortization schedule extending beyond its Stated Maturity
Date and as to which, in accordance with such terms, the Monthly Payment due on
its Stated Maturity Date is at least two times larger than the Monthly Payment
due on the Due Date next preceding its Stated Maturity Date.
"Balloon Payment": With respect to any Balloon Mortgage Loan as of
any date of determination, the Monthly Payment payable on the Stated Maturity
Date of such Mortgage Loan.
"Bank": As defined in Section 2.08.
"Bank of America": Bank of America, N.A., or its successor in
interest.
"Bank of America Mortgage Loan": Any of the Mortgage Loans, other
than the HVB Mortgage Loans. Bank of America Mortgage Loans are identified as
such on the Mortgage Loan Schedule under the heading "Loan Seller".
"Bank of America/BACM Mortgage Loan Purchase and Sale Agreement":
The Mortgage Loan Purchase and Sale Agreement, dated as of September 22, 2000,
among Bank of America, the BOA Owner Trust II and the Depositor.
"Bank of America Sub-Servicer": Any one of those Sub-Servicers
listed on Schedule II attached hereto.
"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 October 25, 2000,
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.
"BOA Owner Trust II": Bank of America Commercial Mortgage Owner
Trust II, a Delaware business trust.
"Business Day": Any day other than a Saturday, a Sunday or a day on
which banking institutions in New York, Minnesota, Texas and Florida and the
jurisdictions 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 2000-2 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 Banc of America Commercial Mortgage Inc., Commercial Mortgage
Pass-Through Certificates, Series 2000-2, 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 Sellers, 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 Sellers, 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 or REMIC I
Regular Interests bearing the same alphabetical and, if applicable, numerical
Class designation.
"Class A Certificate": Any one of the Class A-1 or Class A-2
Certificates.
"Class A-1 Certificate": Any one of the Certificates with a "Class
A-1" designation on the face thereof, substantially in the form of Exhibit A-1
attached hereto, and evidencing a "regular interest" in REMIC III for purposes
of the REMIC Provisions.
"Class A-1 Pass-Through Rate": A per annum rate equal to 7.0200%.
"Class A-2 Certificate": Any one of the Certificates with a "Class
A-2" designation on the face thereof, substantially in the form of Exhibit A-2
attached hereto, and evidencing a "regular interest" in REMIC III for purposes
of the REMIC Provisions.
"Class A-2 Pass-Through Rate": A per annum rate equal to 7.1970%,
provided that the Class A-2 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-4
attached hereto, and evidencing a "regular interest" in REMIC III for purposes
of the REMIC Provisions.
"Class B Pass-Through Rate": A per annum rate equal to 7.3780%,
provided that the Class B Pass-Through Rate shall not exceed the Weighted
Average Adjusted Net Mortgage Rate for the related Distribution Date.
"Class C Certificate": Any one of the Certificates with a "Class C"
designation on the face thereof, substantially in the form of Exhibit A-5
attached hereto, and evidencing a "regular interest" in REMIC III for purposes
of the REMIC Provisions.
"Class C Pass-Through Rate": A per annum rate equal to 7.4380%,
provided that the Class C Pass-Through Rate shall not exceed 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-6
attached hereto, and evidencing a "regular interest" in REMIC III for purposes
of the REMIC Provisions.
"Class D Pass-Through Rate": A per annum rate equal to 7.5160%,
provided that the Class D Pass-Through Rate shall not exceed 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-7
attached hereto, and evidencing a "regular interest" in REMIC III for purposes
of the REMIC Provisions.
"Class E Pass-Through Rate": A per annum rate equal to 7.6340%,
provided that the Class E Pass-Through Rate shall not exceed the Weighted
Average Adjusted Net Mortgage Rate for the related Distribution Date.
"Class F Certificate": Any one of the Certificates with a "Class F"
designation on the face thereof, substantially in the form of Exhibit A-8
attached hereto, and evidencing a "regular interest" in REMIC III for purposes
of the REMIC Provisions.
"Class F Pass-Through Rate": A per annum rate equal to 7.9170%,
provided that the Class F Pass-Through Rate shall not exceed the Weighted
Average Adjusted Net Mortgage Rate for the related Distribution Date.
"Class G Certificate": Any one of the Certificates with a "Class G"
designation on the face thereof, substantially in the form of Exhibit A-9
attached hereto, and evidencing a "regular interest" in REMIC III for purposes
of the REMIC Provisions.
"Class G Pass-Through Rate": A per annum rate equal to the Weighted
Average Adjusted Net Mortgage Rate for the related Distribution Date minus 0.14%
per annum.
"Class H Certificate": Any one of the Certificates with a "Class H"
designation on the face thereof, substantially in the form of Exhibit A-10
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class H 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 for the related Distribution Date
minus the Class H Pass-Through Rate. For the avoidance of doubt the Class H
Component Pass-Through Rate is zero.
"Class H Pass-Through Rate": A per annum rate equal to the Weighted
Average Adjusted Net Mortgage Rate for the related Distribution Date.
"Class J Certificate": Any one of the Certificates with a "Class J"
designation on the face thereof, substantially in the form of Exhibit A-11
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class J 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 for the related Distribution Date
minus the Class J Pass-Through Rate.
"Class J Pass-Through Rate": A per annum rate equal to 7.000%.
"Class K Certificate": Any one of the Certificates with a "Class K"
designation on the face thereof, substantially in the form of Exhibit A-12
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class K 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 for the related Distribution Date
minus the Class K Pass-Through Rate.
"Class K Pass-Through Rate": A per annum rate equal to 7.000%;
provided, however, such rate shall not exceed the Weighted Average Adjusted Net
Mortgage Rate for the related Distribution Date.
"Class L Certificate": Any one of the Certificates with a "Class L"
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 L 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 LL
Uncertificated Interest, which corresponds to the Certificate Principal Balance
of the Class L Certificates.
"Class L Component Pass-Through Rate": A per annum rate equal to the
Weighted Average Adjusted Net Mortgage Rate for the related Distribution Date
minus the Class L Pass-Through Rate.
"Class L Pass-Through Rate": A per annum rate equal to 7.000%;
provided, however, such rate shall not exceed the Weighted Average Adjusted Net
Mortgage Rate for the related Distribution Date.
"Class M Certificate": Any one of the Certificates with a "Class M"
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 M 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 LM
Uncertificated Interest, which corresponds to the Certificate Principal Balance
of the Class M Certificates.
"Class M Component Pass-Through Rate": A per annum rate equal to the
Weighted Average Adjusted Net Mortgage Rate for the related Distribution Date
minus the Class M Pass-Through Rate.
"Class M Pass-Through Rate": A per annum rate equal to 7.000%;
provided, however, such rate shall not exceed the Weighted Average Adjusted Net
Mortgage Rate for the related Distribution Date.
"Class N Certificate": Any one of the Certificates with a "Class N"
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 N 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 LN
Uncertificated Interest, which corresponds to the Certificate Principal Balance
of the Class N Certificates.
"Class N Component Pass-Through Rate": A per annum rate equal to the
Weighted Average Adjusted Net Mortgage Rate for the related Distribution Date
minus the Class N Pass-Through Rate.
"Class N Pass-Through Rate": A per annum rate equal to 7.000%;
provided, however, such rate shall not exceed the Weighted Average Adjusted Net
Mortgage Rate for the related Distribution Date.
"Class O Certificate": Any one of the Certificates with a "Class O"
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 O 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 LO
Uncertificated Interest, which corresponds to the Certificate Principal Balance
of the Class O Certificates.
"Class O Component Pass-Through Rate": A per annum rate equal to the
Weighted Average Adjusted Net Mortgage Rate for the related Distribution Date
minus the Class O Pass-Through Rate.
"Class O Pass-Through Rate": A per annum rate equal to 7.000%;
provided, however, such rate shall not exceed the Weighted Average Adjusted Net
Mortgage Rate for the related Distribution Date.
"Class P Certificate": Any one of the Certificates with a "Class P"
designation on the face thereof, substantially in the form of Exhibit A-17
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class P 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 LP
Uncertificated Interest, which corresponds to the Certificate Principal Balance
of the Class P Certificates.
"Class P Component Pass-Through Rate": A per annum rate equal to the
Weighted Average Adjusted Net Mortgage Rate for the related Distribution Date
minus the Class P Pass-Through Rate.
"Class P Pass-Through Rate": A per annum rate equal to 7.000%;
provided, however, such rate shall not exceed the Weighted Average Adjusted Net
Mortgage Rate for the related Distribution Date.
"Class LA-1 Uncertificated Interest": A regular interest in REMIC I
which is held as an asset of REMIC II and having the initial Uncertificated
Principal Balance and per annum rate of interest set forth in the Preliminary
Statement hereto.
"Class LA-2 Uncertificated Interest": A regular interest in REMIC I
which is held as an asset of REMIC II and having the initial Uncertificated
Principal Balance and per annum rate of interest set forth in the Preliminary
Statement hereto.
"Class LB Uncertificated Interest": A regular interest in REMIC I
which is held as an asset of REMIC II and having the initial Uncertificated
Principal Balance and per annum rate of interest set forth in the Preliminary
Statement hereto.
"Class LC Uncertificated Interest": A regular interest in REMIC I
which is held as an asset of REMIC II and having the initial Uncertificated
Principal Balance and per annum rate of interest set forth in the Preliminary
Statement hereto.
"Class LD Uncertificated Interest": A regular interest in REMIC I
which is held as an asset of REMIC II and having the initial Uncertificated
Principal Balance and per annum rate of interest set forth in the Preliminary
Statement hereto.
"Class LE Uncertificated Interest": A regular interest in REMIC I
which is held as an asset of REMIC II and having the initial Uncertificated
Principal Balance and per annum rate of interest set forth in the Preliminary
Statement hereto.
"Class LF Uncertificated Interest": A regular interest in REMIC I
which is held as an asset of REMIC II and having the initial Uncertificated
Principal Balance and per annum rate of interest set forth in the Preliminary
Statement hereto.
"Class LG Uncertificated Interest": A regular interest in REMIC I
which is held as an asset of REMIC II and having the initial Uncertificated
Principal Balance and per annum rate of interest set forth in the Preliminary
Statement hereto.
"Class LH Uncertificated Interest": A regular interest in REMIC I
which is held as an asset of REMIC II and having the initial Uncertificated
Principal Balance and per annum rate of interest set forth in the Preliminary
Statement hereto.
"Class LJ Uncertificated Interest": A regular interest in REMIC I
which is held as an asset of REMIC II and having the initial Uncertificated
Principal Balance and per annum rate of interest set forth in the Preliminary
Statement hereto.
"Class LK Uncertificated Interest": A regular interest in REMIC I
which is held as an asset of REMIC II and having the initial Uncertificated
Principal Balance and per annum rate of interest set forth in the Preliminary
Statement hereto.
"Class LL 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 LM 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 LN 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 LO 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 LP Uncertificated Interest": A regular interest in REMIC I
which is held as an asset of REMIC II and having the initial Uncertificated
Principal Balance and per annum rate of interest set forth in the Preliminary
Statement hereto.
"Class MA-1 Uncertificated Interest": A regular interest in REMIC II
which is held as an asset of REMIC IIU and having the initial Uncertificated
Principal Balance and per annum rate of interest set forth in the Preliminary
Statement hereto.
"Class MA-2 Uncertificated Interest": A regular interest in REMIC II
which is held as an asset of REMIC IIU and having the initial Uncertificated
Principal Balance and per annum rate of interest set forth in the Preliminary
Statement hereto.
"Class MB Component": That portion of the Class X Notional Amount
equal to the Uncertificated Principal Balance of the Class MB Uncertificated
Interest.
"Class MB Component Pass-Through Rate": 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 III and having the initial Uncertificated
Principal Balance and per annum rate of interest set forth in the Preliminary
Statement hereto.
"Class MC Component": That portion of Class X Notional Amount
equal to the Uncertificated Principal Balance of the Class MC Uncertificated
Interest.
"Class MC Component Pass-Through Rate": A per annum rate equal to
the Weighted Average Adjusted Net Mortgage Rate minus the Class C Pass-Through
Rate.
"Class MC Uncertificated Interest": A regular interest in REMIC II
which is held as an asset of REMIC III and having the initial Uncertificated
Principal Balance and per annum rate of interest set forth in the Preliminary
Statement hereto.
"Class MD Component": That portion of Class X Notional Amount
equal to the Uncertificated Principal Balance of the Class MD Uncertificated
Interest.
"Class MD Component Pass-Through Rate": A per annum rate equal to
the Weighted Average Adjusted Net Mortgage Rate minus the Class D Pass-Through
Rate.
"Class MD Uncertificated Interest": A regular interest in REMIC II
which is held as an asset of REMIC III and having the initial Uncertificated
Principal Balance and per annum rate of interest set forth in the Preliminary
Statement hereto.
"Class ME Component": That portion of the Class X Notional Amount
equal to the Uncertificated Principal Balance of the Class ME Uncertificated
Interest.
"Class ME 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 ME Uncertificated Interest": A regular interest in REMIC II
which is held as an asset of REMIC III and having the initial Uncertificated
Principal Balance and per annum rate of interest set forth in the Preliminary
Statement hereto.
"Class MF Component": That portion of the Class X Notional Amount
equal to the Uncertificated Principal Balance of the Class MF Uncertificated
Interest.
"Class MF 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 MG 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 MG Component": That portion of the Class X Notional Amount
equal to the Uncertificated Principal Balance of the Class MG Uncertificated
Interest.
"Class MG 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 MG Uncertificated Interest": A regular interest in REMIC II
which is held as an asset of REMIC III and having the initial Uncertificated
Principal Balance and per annum rate of interest set forth in the Preliminary
Statement hereto.
"Class MX Component": That portion of the Class X Notional Amount
equal to the Class MX Notional Amount.
"Class MX Notional Amount": The aggregate hypothetical or notional
principal amount on which the Class MX Uncertificated Interest collectively
accrues interest, which amount is equal to the aggregate of the Uncertificated
Principal Balances of the Class LH, Class LJ, Class LK, Class LL, Class LM,
Class LN, Class LO and Class LP Uncertificated Interests, which correspond to
the Certificate Principal Balances of the Class H, Class J, Class K, Class L,
Class M, Class N, Class O and Class P 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 H Component, the Class J
Component, the Class K Component, the Class L Component, the Class M Component,
the Class N Component, the Class O Component and the Class P Component, weighted
on the basis of their respective portions of the Class MX Notional Amount.
"Class MX Uncertificated Interest": A regular interest in REMIC II
which is held as an asset of REMIC III and having an initial Class Notional
Amount equal to the Class MX Notional Amount and per annum rate of interest
equal to the Class MX Pass-Through Rate.
"Class Notional Amount": The Class MX Notional Amount or the
Class X Notional Amount.
"Class Principal Balance": The aggregate principal amount of any
Class of Sequential Pay Certificates outstanding as of any date of
determination. As of the Original Closing Date, the Class Principal Balance of
each such Class of Certificates shall equal the Original Class Principal
Balance. On the Sequel Closing Date, the Class A-1, Class A-2, Class B, Class C,
Class D, Class E, Class F, Class G, Class H and Class K Certificates are
reissued and the Class Principal Balance of such Certificates as of the Sequel
Closing Date shall equal the Initial Class Principal Balance thereof. On each
Distribution Date, the Class Principal Balance of each Class of the Sequential
Pay Certificates shall be permanently reduced by the amount of any distributions
of principal made thereon on such Distribution Date pursuant to Section 4.01(b)
and, if and to the extent appropriate, shall be further permanently reduced on
such Distribution Date as provided in Section 4.04.
"Class R-I Certificate": Any one of the Certificates with a "Class
R-I" designation on the face thereof, substantially in the form of Exhibit A-18
attached hereto, and evidencing the sole Class of "residual interest" in REMIC I
and in each of the Loan REMIC Residual Interests 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-19
attached hereto, and evidencing the sole Class of "residual interest" in REMIC
II for purposes of the REMIC Provisions.
"Class R-IIU Certificate": Any one of the Certificates with a "Class
R-IIU" 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 IIU 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-22 attached hereto, and evidencing the sole Class of "residual interest" in
REMIC III for purposes of the REMIC Provisions.
"Class UA-1 Component": That portion of the Class X Notional Amount
equal to the Uncertificated Principal Balance of the Class UA-1 Uncertificated
Interest.
"Class UA-1 Component Pass-Through Rate": A per annum rate equal to
the Weighted Average Net Mortgage Rate minus the Class A-1 Pass-Through Rate.
"Class UA-1 Uncertificated Interest": A regular interest in REMIC
IIU 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 UA-2 Component": 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": 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
IIU 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 V Certificate": A Certificate designated as "Class V" on the
face thereof, substantially in the form of Exhibit A-20 and evidencing an
interest in the Grantor Trust.
"Class X Certificate": Any one of the Certificates with a "Class X"
designation on the face thereof, substantially in the form of Exhibit A-3, and
evidencing a "regular interest" in REMIC III for purposes of the REMIC
Provisions.
"Class X Notional Amount": The aggregate hypothetical or notional
principal amount on which the Class X Certificates collectively accrue interest,
which amount is equal to the aggregate of the Uncertificated Principal Balances
of (i) the Class UA-1, Class UA-2, Class MB, Class MC, Class MD, Class ME, Class
MF and Class MG Uncertificated Interests and (ii) the Class MX Notional Amount,
in each case as of the preceding Distribution Date (after giving effect to the
distributions of principal on such Distribution Date) or in the case of the
November 2000 Distribution Date, the Sequel Closing Date.
"Class X Pass-Through Rate": A rate per annum, rounded to eight
decimal places, equal to the weighted average of the Component Pass-Through
Rates on the Class UA-1 Component, Class UA-2 Component, Class MB Component,
Class MC Component, Class MD Component, Class ME Component, Class MF Component
and Class MG Component and the Class MX Pass-Through Rate, weighted on the basis
of their respective portions of the Class X Notional Amount or the Class MX
Notional Amount.
"CMSA": The Commercial Mortgage Securities Association (formerly
the Commercial Real Estate Secondary Market and Securitization Association,
the "CSSA") or any successor organization.
"CMSA Loan Periodic Update File": As defined in Section 4.02(b).
"CMSA Loan Set Up File": As referenced in Section 4.02(a).
"Code": The Internal Revenue Code of 1986, as amended.
"Collection Period": With respect to any Distribution Date, the
period commencing immediately following the Determination Date in the calendar
month preceding the month in which such Distribution Date occurs (or, in the
case of the initial Distribution Date, commencing immediately following the
Cut-off Date) and ending on and including the Determination Date in the calendar
month in which such Distribution Date occurs.
"Commission": The Securities and Exchange Commission.
"Component": Any of the Class MB Component, Class MC Component,
Class MD Component, Class ME Component, Class MF Component, Class MG Component,
Class UA-1 Component, Class UA-2 Component, Class H Component, Class J
Component, Class K Component, Class L Component, Class M Component, Class N
Component, Class O Component and Class P Component.
"Component Pass-Through Rate": Any of the Class UA-1 Component
Pass-Through Rate, Class UA-2 Component Pass-Through Rate, Class MB Component
Pass-Through Rate, Class MC Component Pass-Through Rate, Class MD Component
Pass-Through Rate, Class ME Component Pass-Through Rate, Class MF Component
Pass-Through Rate, Class MG Component Pass-Through Rate, Class H Component
Pass-Through Rate, Class J Component Pass-Through Rate, Class K Component
Pass-Through Rate, Class L Component Pass-Through Rate, Class M Component
Pass-Through Rate, Class N Component Pass-Through Rate, Class O Component
Pass-Through Rate and Class P Component Pass-Through Rate.
"Confidential Information": As defined in Section 3.24.
"Confirmation": As defined in Section 3.22(g).
"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 Wells Fargo Center, Sixth and
Marquette, MAC# N 9303-121, Minneapolis, Minnesota 55479-0113, Attention:
Corporate Trust Services (CMBS) - Banc of America Commercial Mortgage Inc.
Commercial Mortgage Pass-Through Certificates, Series 2000-2 and for all other
purposes, 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) - Banc of America Commercial Mortgage Inc. Commercial Mortgage
Pass-Through Certificates, Series 2000-2.
"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 I Regular
Interest," "Corresponding REMIC II Uncertificated Regular Interest" and
"Corresponding REMIC IIU Regular Interest": The related Classes of REMIC I
Regular Interests, REMIC II Uncertificated Regular Interests, REMIC IIU Regular
Interests and the Certificates set forth below:
Corresponding
REMIC II
Corresponding REMIC I Uncertificated Corresponding REMIC Corresponding
Regular Interest Regular Interest IIU Regular Interest Certificate
---------------- ---------------- -------------------- -----------
Class LA-1 Class MA-1 Class UA-1 Class A-1
Uncertificated Uncertificated Uncertificated Certificate
Interest Interest Interest
Class LA-2 Class MA-2 Class UA-2 Class A-2
Uncertificated Uncertificated Uncertificated Certificate
Interest Interest Interest
Class LB Class MB Class B
Uncertificated Uncertificated Certificate
Interest Interest
Class LC Class MC Class C
Uncertificated Uncertificated Certificate
Interest Interest
Class LD Class MD Class D
Uncertificated Uncertificated Certificate
Interest Interest
Class LE Class ME Class E
Uncertificated Uncertificated Certificate
Interest Interest
Class LF Class MF Class F
Uncertificated Uncertificated Certificate
Interest Interest
Class LG Class MG Class G
Uncertificated Uncertificated Certificate
Interest Interest
Class LH Class H
Uncertificated Certificate
Interest
Class LJ Class J
Uncertificated Certificate
Interest
Class LK Class K
Uncertificated Certificate
Interest
Class LL Class L
Uncertificated Certificate
Interest
Class LM Class M
Uncertificated Certificate
Interest
Class LN Class N
Uncertificated Certificate
Interest
Class LO Class O
Uncertificated Certificate
Interest
Class LP Class P
Uncertificated Certificates
Interest
"CPR": As defined in the Base Prospectus.
"Cross-Collateralized Mortgage Loan": Any Mortgage Loan that is
cross-collateralized and cross-defaulted with one or more other Mortgage
Loans.
"Current Principal Distribution Amount": With respect to any
Distribution Date, an amount (calculated in accordance with Section 1.02)
equal to the aggregate of, without duplication:
(a) the principal portions of all Monthly Payments (other than
Balloon Payments) and any Assumed Monthly Payments due or deemed due, as the
case may 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 Sellers or an Affiliate of
either.
"Cut-off Date": September 1, 2000.
"Cut-off Date Balance": With respect to any Mortgage Loan, the
outstanding principal balance of such Mortgage Loan as of the Cut-off Date, net
of all unpaid payments of principal due in respect thereof on or before such
date.
"Debt Service Coverage Ratio": With respect to any Mortgage Loan, as
of any date of determination, and calculated without regard to any
cross-collateralization feature of such Mortgage Loan, the ratio of (x) the Net
Operating Income (before payment of any debt service on such Mortgage Loan)
generated by the related Mortgaged Property or Mortgaged Properties during the
most recently ended period of not more than twelve (12) months or less than
three (3) months for which financial statements (whether or not audited) have
been received by or on behalf of the Mortgage Loan Seller (prior to the Original
Closing Date) or the Master Servicer or 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. The Master
Servicer may, in accordance with CMSA reporting standards, report Net Operating
Income with respect to each Mortgaged Property where one or more Mortgage Loans
are secured by multiple Mortgaged Properties; provided, however, that for
purposes of determining Debt Service Coverage Ratio compliance, calculations
shall be made at the Mortgage Loan level.
"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, other than a Prepayment
Premium, Yield Maintenance Charge or Excess Interest.
"Default Interest": With respect to any Mortgage Loan (or related
REO Loan), any amounts collected thereon, other than late payment charges and
Prepayment Premiums, that represent interest (exclusive, if applicable, of
Excess 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.
"Denomination": As defined in Section 5.01(a).
"Depositor": Banc of America Commercial Mortgage Inc., or its
successor in interest.
"Depository": The Depository Trust Company, or any successor
Depository hereafter named. The nominee of the initial Depository for purposes
of registering those Certificates that are to be Book-Entry Certificates, is
Cede & Co. The Depository shall at all times be a "clearing corporation" as
defined in Section 8-102(3) of the Uniform Commercial Code of the State of New
York and a "clearing agency" registered pursuant to the provisions of Section
17A of the Exchange Act.
"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
fifth (5th) Business Day before such Distribution Date.
"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 or the related Loan REMIC 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).
"Discount Rate Fraction": As defined in Section 4.01(c).
"Disqualified Non-U.S. Person": With respect to a Class R-I, Class
R-II, Class R-IIU or Class R-III Certificate, any Non-U.S. Person or agent
thereof other than (i) a Non-U.S. Person that holds the Class R-I, Class R-II,
Class R-IIU or Class R-III Certificate in connection with the conduct of a trade
or business within the United States and has furnished the transferor and the
Certificate Registrar with an effective IRS Form 4224 (or 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-IIU or Class
R-III Certificate to it is in accordance with the requirements of the Code and
the regulations promulgated thereunder and that such transfer of the Class R-I,
Class R-II, Class R-IIU or Class R-III Certificate will not be disregarded for
federal income tax purposes.
"Disqualified Organization": Any of the following: (i) the United
States or a possession thereof, any State or any political subdivision thereof,
or any agency or instrumentality of any of the foregoing (other than an
instrumentality which is a corporation if all of its activities are subject to
tax and, except for Freddie Mac, a majority of its board of directors is not
selected by any such governmental unit), (ii) a foreign government,
international organization, or any agency or instrumentality of either of the
foregoing, (iii) any organization (except certain farmers' cooperatives
described in Section 521 of the Code) which is exempt from the tax imposed by
Chapter 1 of the Code (unless such organization is subject to the tax imposed by
Section 511 of the Code on unrelated business taxable income), (iv) rural
electric and telephone cooperatives described in Section 1381 of the Code or (v)
any other Person so designated by the REMIC Administrator based upon an Opinion
of Counsel that the holding of an Ownership Interest in a Residual Certificate
by such Person may cause the Trust or any Person having an Ownership Interest in
any Class of Certificates, other than such Person, to incur a liability for any
federal tax imposed under the Code that would not otherwise be imposed but for
the Transfer of an Ownership Interest in a Residual Certificate to such Person.
The terms "United States", "State" and "international organization" shall have
the meanings set forth in Section 7701 of the Code or successor provisions.
"Distributable Certificate Interest": With respect to any Class of
Regular Certificates, for any Distribution Date, the Accrued Certificate
Interest in respect of such Class of Certificates for such Distribution Date,
reduced (to not less than zero) by that portion, if any, of the Net Aggregate
Prepayment Interest Shortfall for such Distribution Date allocated to such Class
of Certificates as set forth below. The Net Aggregate Prepayment Interest
Shortfall, if any, for each Distribution Date shall be allocated, first, to the
Class, P, Class O, Class N, Class M, Class L, 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 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 "Wells Fargo Bank Minnesota, N. A.,
as Trustee, in trust for the registered holders of Banc of America Commercial
Mortgage Inc., Commercial Mortgage Pass-Through Certificates, Series 2000-2,
Distribution Account".
"Distribution Date": The 15th day of any month, or if such 15th day
is not a Business Day, the Business Day immediately following, commencing in
November 2000.
"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 "Aa3" by
Moody's, and "A" by S&P (if the deposits are to be held in the account for more
than 30 days), or the short-term unsecured debt obligations of which are rated
no less than "P-1" by Moody's and "A-1" by S&P (if the deposits are to be held
in the account for 30 days or less), in each case, at any time funds are on
deposit therein, (ii) a segregated trust account or accounts maintained with the
corporate trust department of a federally chartered depository institution or
trust company, including, without limitation, the Trustee, acting in its
fiduciary capacity and subject to the regulations regarding fiduciary funds on
deposit therein under 12 C.F.R. ss.9.10(b), (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 American
International Specialty Lines Insurance Company in the form attached hereto as
Exhibit L and naming as insureds the Trustee and the Mortgage Loan Sellers.
"ERISA": The Employee Retirement Income Security Act of 1974, as
amended.
"Escrow Payment": Any payment received by the Master Servicer or the
Special Servicer for the account of any Mortgagor for application toward the
payment of real estate taxes, assessments, insurance premiums and similar items
in respect of the related Mortgaged Property.
"Event of Default": One or more of the events described in Section
7.01(a).
"Excess Interest": With respect to any ARD Loan after its
Anticipated Repayment Date, all interest accrued thereon at the Excess Interest
Rate, the payment of which interest shall, under the terms of such Mortgage
Loan, be deferred until all interest accrued at the Mortgage Rate (net of the
Excess Interest Rate) and outstanding principal has been paid, together with all
interest, if any, accrued at the related Mortgage Rate on such deferred
interest. Excess Interest shall not be an asset of the Loan REMICs, REMIC I,
REMIC II, REMIC IIU or REMIC III formed hereunder.
"Excess Interest Distribution Account": The segregated account or
accounts created and maintained by the Trustee pursuant to Section 4.06, which
shall be entitled "Wells Fargo Bank Minnesota, N.A., in trust for the registered
Holders of Banc of America Commercial Mortgage, Inc. Commercial Mortgage
Pass-Through Certificates, Series 2000-2, Excess Interest Distribution Account",
and which must be an Eligible Account. The Excess Interest Distribution Account
shall not be an asset of the Loan REMICs, REMIC I, REMIC II, REMIC IIU or REMIC
III formed hereunder.
"Excess Interest Rate": With respect to any ARD Loan after its
Anticipated Repayment Date, the incremental increase in the Mortgage Rate for
such Mortgage Loan resulting from the passage of such Anticipated Repayment
Date.
"Exchange Act": The Securities Exchange Act of 1934, as amended.
"Exemption-Favored Party": Any of (i) Bank of America Corporation
(successor in interest to NationsBank Corporation), (ii) any Person directly or
indirectly, through one or more intermediaries, controlling, controlled by or
under common control with Bank of America 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 a 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.
"Freddie Mac": The Federal Home Loan Mortgage Corporation or any
successor.
"Grantor Trust": A segregated asset pool within the Trust Fund
consisting of the Loan REMIC Residual Interests, the Excess Interest and amounts
held from time to time in the Excess Interest Distribution Account.
"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. With respect to Loan
No. 51961 and Loan No. 51962, the term "Ground Lease" shall be deemed to refer
to the ground sub-lease pursuant to which the related Mortgagor holds a
sub-leasehold interest in the related Mortgaged Property and any estoppel
agreements entered into by and between lenders and ground sub-lessees and/or
ground sub-lessors and/or mortgagees of the ground sub-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 Liquidation 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 (net of Liquidation Expenses) received 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.
"HVB": HVB Realty Capital Inc., a New York corporation.
"HVB/BACM Mortgage Loan Purchase and Sale Agreement": The Mortgage
Loan Purchase Agreement, dated as of September 22, 2000, between HVB and the
Depositor.
"HVB Mortgage Loan": Any of the Mortgage Loans acquired by BACM
pursuant to the HVB/BACM Mortgage Loan Purchase and Sale Agreement. The HVB
Mortgage Loans are identified as such on the Mortgage Loan Schedule under the
heading "Mortgage Loan Seller".
"Independent": When used with respect to any specified Person, any
such Person who (i) is in fact independent of the Depositor, the Mortgage Loan
Sellers, 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 Sellers, 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 Sellers, the Master Servicer,
the Special Servicer, the Trustee, the REMIC Administrator or any Affiliate
thereof as an officer, employee, promoter, underwriters, 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
Sellers, 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 Sellers, 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 or the applicable Loan REMIC within the
meaning of Section 856(d)(3) of the Code if REMIC I or the applicable Loan REMIC
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
or the applicable Loan REMIC does not receive or derive any income from such
Person and provided that the relationship between such Person and REMIC I or the
applicable Loan REMIC 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 $889,004,533.
"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, seismic (earthquake) insurance policy,
business interruption 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 Class of REMIC I
Regular Interests, REMIC II Uncertificated Regular Interests, REMIC IIU Regular
Interests and each Class of Regular Certificates, for any Distribution Date, the
calendar month immediately preceding the month in which such Distribution Date
occurs. With respect to the Loan REMIC Regular Interests, the interest accrual
period of the related Mortgage Loan.
"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 "Wells Fargo Bank Minnesota,
N.A., as Trustee in trust for the registered holders of Banc of America
Commercial Mortgage Inc., Commercial Mortgage Pass-Through Certificates,
Series 2000-2, Interest Reserve Account".
"Interested Person": The Depositor, the Mortgage Loan Sellers,
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 a 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 a Mortgage Loan Seller or any Affiliate thereof
pursuant to Section 2.03, (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, the Special 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 a 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.
"Loan REMICs": Those two (2) REMICs constituted by HVB Loan No.
510238 and HVB Loan No. 540310, respectively.
"Loan REMIC Declarations": Those two (2) REMIC Declarations,
dated August 31, 2000 with respect to HVB Loan No. 510238 and August 31, 2000
with respect to HVB Loan No. 540310.
"Loan REMIC Interests": Collectively, the Loan REMIC Residual
Interests and the Loan REMIC Regular Interests.
"Loan REMIC Regular Interests": the uncertificated "regular
interests," within the meaning of Code Section 860G(a)(1), in the Loan REMICs
issued pursuant to the Loan REMIC Declarations. The principal balances of the
Loan REMIC Regular Interests shall equal the Stated Principal Balances of HVB
Loan No. 510238 and HVB Loan No. 540310 (or, if applicable, the deemed Stated
Principal Balance of any successor REO Loan) outstanding from time to time.
Payments and other collections of amounts received on or in respect of HVB Loan
No. 510238 and HVB Loan No. 540310 (or any related REO Property) and allocable
(in accordance with Section 1.02) to interest on, principal of and/or Prepayment
Premiums or Yield Maintenance Charges in respect of such Mortgage Loans (or any
successor REO Loan) shall be deemed paid on the Loan REMIC Regular Interests at
the time such amounts are so received. The terms of the Loan REMIC Regular
Interests are otherwise set forth in the Loan REMIC Declarations.
"Loan REMIC Residual Interests": The uncertificated "residual
interests," within the meaning of Code Section 860G(a)(2), in the Loan REMICs
issued pursuant to the Loan REMIC Declarations.
"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 (including, without
limitation Excess 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 Servicer Reporting Date": As defined in Section 4.02(b).
"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 is 0.26 basis points (0.0026% per
annum) less than the Administrative Fee Rate specified for such Mortgage Loan in
the Mortgage Loan Schedule.
"Midland Confirmation": As defined in Section 3.22(g).
"Modified Mortgage Loan": Any Mortgage Loan as to which any
Servicing Transfer Event has occurred and which has been modified by the Special
Servicer pursuant to Section 3.20 in a manner that:
(a) affects the amount or timing of any payment of principal or
interest due thereon (other than, or in addition to, bringing current Monthly
Payments with respect to such Mortgage Loan);
(b) except as expressly contemplated by the related Mortgage,
results in a release of the lien of the Mortgage on any material portion of the
related Mortgaged Property without a corresponding Principal Prepayment in an
amount not less than the fair market value (as is), as determined by an
Appraisal delivered to the Special Servicer (at the expense of the related
Mortgagor and upon which the Special Servicer may conclusively rely), of the
property to be released; or
(c) in the good faith and reasonable judgment of the Special
Servicer, otherwise materially impairs the security for such Mortgage Loan or
reduces the likelihood of timely payment of amounts due thereon.
"Monthly Payment": With respect to any Mortgage Loan, for any Due
Date as of which such Mortgage Loan is outstanding, the scheduled monthly
payment (or, in the case of an ARD Loan after its Anticipated Repayment Date,
the minimum required 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; provided that the Monthly Payment due in respect of
any ARD Loan after its Anticipated Repayment Date shall not include Excess
Interest.
"Moody's": Moody's Investors Service, Inc. or its successor in
interest. If neither such rating agency nor any successor remains in existence,
"Moody's" shall be deemed to refer to such other nationally recognized
statistical rating agency or other comparable Person designated by the
Depositor, notice of which designation shall be given to the Trustee, the Master
Servicer, the Special Servicer and the REMIC Administrator, and specific ratings
of Moody's Investors Service, Inc. herein referenced shall be deemed to refer to
the equivalent ratings of the party so designated.
"Mortgage": With respect to any Mortgage Loan, separately and
collectively, as the context may require, each mortgage, deed of trust and/or
other similar document or instrument securing the related Mortgage Note and
creating a lien on the related Mortgaged Property.
"Mortgage File": With respect to any Mortgage Loan, subject to
Section 2.01(c), collectively the following documents:
(i) the original Mortgage Note, endorsed by the most recent endorsee
prior to the Trustee or, if none, by the originator, without recourse, either in
blank or to the order of the Trustee in the following form: "Pay to the order of
Wells Fargo Bank Minnesota, N.A., as trustee for the registered holders of Banc
of America Commercial Mortgage Inc., Commercial Mortgage Pass-Through
Certificates, Series 2000-2, 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 related 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 related 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 and/or
engineering report relating to such Mortgage Loan; provided that, if such report
is sent directly to the Master Servicer, and the Master Servicer so notifies the
Depositor, then the Depositor shall have no duty to provide a copy of such
report to the Trustee and the Master Servicer shall provide such report to the
Trustee;
(xx) any additional documents required to be added to the Mortgage
File pursuant to this Agreement;
(xxi) any environmental policy; and
(xxii) with respect to HVB Loan No. 510238 and HVB Loan No. 540310,
originals or copies of the Loan REMIC Declarations.
provided that whenever the term "Mortgage File" is used to refer to documents
actually received by the Trustee or a Custodian appointed thereby, such term
shall not be deemed to include such documents and instruments required to be
included therein unless they are actually so received.
"Mortgage Loan": Each of the mortgage loans transferred and assigned
to the Trustee pursuant to Section 2.01 and from time to time held in the Trust
Fund. As used herein, the term "Mortgage Loan" includes the related Mortgage
Note, Mortgage and other security documents contained in the related Mortgage
File.
"Mortgage Loan Schedule": The list of Mortgage Loans transferred on
the Original Closing Date to the Trustee as part of the Trust Fund, which list
is attached hereto as Schedule I and may be amended from time to time in
accordance with Section 2.02(e). The Mortgage Loan Schedule shall set forth,
among other things, the following information with respect to each Mortgage
Loan:
(i) the loan number and the control number, indicating whether the
Mortgage Loan is a Bank of America Loan or a HVB Mortgage Loan;
(ii) the street address or addresses (including city, state and zip
code) of the related Mortgaged Property (with the exception of HVB Loan No.
513561).
(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 and, in the case of an ARD Loan, the Anticipated Repayment 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 Master Servicer
Fee Rate, the Trustee Fee Rate, the Primary Servicing Fee Rate and the Standby
Fee Rate);
(x) the Primary Servicing Fee Rate;
(xi) the Master Servicing Fee Rate;
(xii) the Standby Fee Rate;
(xiii) whether the Mortgagor's interest in the related Mortgaged
Property is a leasehold estate;
(xiv) 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;
(xv) the property type (e.g., multifamily);
(xvi) the property size (the square feet or units);
(xvii) the original amortization term; and
(xviii) whether the Mortgage Loan is an ARD Loan.
The Mortgage Loan Schedule shall also set forth the aggregate Cut-off Date
Balance for all of the Mortgage Loans. Such list may be in the form of more than
one list, collectively setting forth all of the information required.
"Mortgage Loan Seller": Each of Bank of America, N.A., and HVB
Realty Capital Inc. and each of their respective 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.
"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, Berkshire Mortgage Finance
Corporation, First Security Bank, N.A., Berkshire Mortgage Finance Bethesda
Limited Partnership and Prudential Multifamily Mortgage, Inc.
"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 during the related Collection Period, exceeds (b) the
aggregate amount remitted by the Master Servicer for deposit in the Distribution
Account for such Distribution Date pursuant to Section 3.19(e) in connection
with such Prepayment Interest Shortfalls.
"Net Default Charges": With respect to any Mortgage Loan or REO
Loan, any Default Charges actually collected thereon (determined in accordance
with the allocation of amounts collected as specified in Section 1.02), net of
any Advance Interest accrued on Advances made in respect of such Mortgage Loan,
but only to the extent such Advance Interest is 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, Loan REMIC
Regular Interest or REO Loan, as of any date of determination, a rate per annum
equal to the related Mortgage Rate then in effect, minus the related
Administrative Fee Rate. For purposes of calculating the Pass-Through Rate for
each Class of Regular Certificates from time to time, the Net Mortgage Rate for
any Mortgage Loan (or the Loan REMIC Regular Interests in the case of HVB Loan
No. 510238 and HVB Loan No. 540310) will be calculated without regard to any
modification, waiver or amendment of the terms of such Mortgage Loan subsequent
to the Original Closing Date.
"Net Operating Income": With respect to any Mortgaged Property, the
total operating revenues derived from such Mortgaged Property, minus the total
fixed and variable operating expenses incurred in respect of such Mortgaged
Property (subject to adjustments for, and excluding, among other things, (i)
non-cash items such as depreciation and amortization, (ii) capital expenditures
(inclusive of replacement reserves) and (iii) debt service on loans secured by
the Mortgaged Property).
"New Lease": Any lease of REO Property entered into at the direction
of the Special Servicer on behalf of the Trust, including any lease renewed,
modified or extended on behalf of the Trust, if the Trust has the right to
renegotiate the terms of such lease.
"NOI Adjustment Worksheet": A report prepared by the Master Servicer
(based upon operating statements, rent rolls, written reports and data fields
collected or prepared by the Special Servicer pursuant to Section 3.12(b) and
Furnished to the Master Servicer by the Special Servicer in the case of
Specially Serviced Mortgage Loans) substantially containing the content
described in Exhibit K attached hereto, presenting the computations made in
accordance with the methodology described in said Exhibit K to "normalize" the
full year end of annual Net Operating Income and debt service coverage ratio
numbers used in the other reports required by this Agreement, sent, upon
request, to the Trustee with a hard copy (or imaged copies) of each annual
operating statement and related rent roll, if available, for a Mortgaged
Property or REO Property pursuant to Section 4.02(b).
"Nonrecoverable Advance": Any Nonrecoverable P&I Advance or
Nonrecoverable Servicing Advance.
"Nonrecoverable P&I Advance": Any P&I Advance made or proposed to be
made in respect of a Mortgage Loan or REO Loan which, as determined by the
Master Servicer or, if applicable, the Trustee, in its reasonable and good faith
judgment, will not be recoverable (together with Advance Interest accrued
thereon), or which in fact was not ultimately recovered, from late collections,
Default Charges (but only to the extent such Default Charges would be available
to pay Advance Interest under Section 3.05(a)(viii)), 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 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, Default Charges (but only to the extent such
Default Charges would be available to pay Advance Interest under Section
3.05(a)(viii)), 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 J, Class K, Class L, Class M, Class N, Class O and
Class P 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 a Mortgage Loan Seller, as the case may be.
"Operating Statement Analysis Report": As described in Section
4.02(b).
"Opinion of Counsel": A written opinion of counsel (who must, in
connection with any opinion rendered pursuant hereto with respect to tax matters
or a resignation under Section 6.04, be Independent counsel, but who otherwise
may be salaried counsel for the Depositor, the Mortgage Loan Sellers, the
Trustee, the REMIC Administrator, the Master Servicer or the Special Servicer),
which written opinion is acceptable and delivered to the addressee(s).
"Original Closing Date": September 22, 2000.
"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.
"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, and Class J Certificates
tenth, the Class K Certificates, eleventh, the Class L Certificates, twelfth,
the Class M Certificates, thirteenth, the Class N Certificates, fourteenth, the
Class O Certificates, fifteenth, the Class P 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 H, Class J, Class K, Class L,
Class M, Class N, Class O and Class P Certificates) or the Sequel Closing Date
(in the case of the Class A-1, Class A-2, Class B, Class C, Class D, Class E,
Class F, Class G 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 or a Class V 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 Moody's 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 "P-1" by Moody's, 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 "P-1" by Moody's, 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") and Moody's; 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
described hereunder shall have a maturity in excess of one (1) year; and
provided, further, that no investment described hereunder shall be liquidated
prior to its maturity date.
"Permitted Transferee": Any Transferee of a Residual Certificate
other than any of a Plan, a Disqualified Organization or a Disqualified
Non-U.S. Person or any nominee, agent or middleman of any of the above.
"Person": Any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization, limited
liability company or government or any agency or political subdivision thereof.
"Phase I Environmental Assessment": A "Phase I assessment" or, in
the case of certain Mortgage Loans having an initial principal balance under
$1,000,000, a transaction screen, as described in, and meeting the criteria of,
(i) Chapter 5 of the FNMA Multifamily Guide or any successor provisions covering
the same subject matter, in the case of Specially Serviced Mortgage Loans as to
which the related Mortgaged Property is multifamily property or (ii) the
American Society for Testing and Materials in the case of Specially Serviced
Mortgage Loans as to which the related Mortgaged Property is a non-multifamily
property.
"P&I Advance": As to any Mortgage Loan or REO Loan, any advance made
by the Master Servicer or the Trustee pursuant to Section 4.03.
"Plan": As defined in Section 5.02(c).
"Prepayment Assumption": The assumption that no Mortgage Loan (other
than an ARD Loan) is prepaid prior to its Stated Maturity Date and that no ARD
Loan is prepaid prior to, but each is paid in its entirety on, its Anticipated
Repayment Date, such assumption to be used for determining the accrual of
original issue discount, market discount and premium, if any, on the Mortgage
Loans, the REMIC I Regular Interests and the Certificates for federal income tax
purposes.
"Prepayment Interest Excess": With respect to any Mortgage Loan that
was subject to a Principal Prepayment in full or in part made on or prior to the
Determination Date in any calendar month but after the first day of such month,
any payment of interest (net of related Master Servicing Fees and exclusive of
Prepayment Premiums and, in the case of an ARD Loan after its Anticipated
Repayment Date, Excess Interest) actually collected from the related Mortgagor
and intended to cover the period from the commencement of such month to the date
of prepayment. A Prepayment Interest Excess in respect of HVB Loan No. 510238 or
HVB Loan No. 540310 shall be a Prepayment Interest Excess in respect of the
related Loan REMIC Regular Interest.
"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 (determined without regard to any Prepayment Premium that
may have been collected and exclusive of, in the case of an ARD Loan after its
Anticipated Repayment Date, Excess 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. A Prepayment
Interest Shortfall in respect of HVB Loan No. 510238 or HVB Loan No. 540310
shall be a Prepayment Interest Shortfall in respect of the related Loan REMIC
Regular Interest.
"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, which monthly fee accrues at the Primary Servicing Fee Rate.
"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 Florida.
"Principal Distribution Amount": With respect to any Distribution
Date, the aggregate of the Current Principal Distribution Amount for such
Distribution Date and, if such Distribution Date is subsequent to the initial
Distribution Date, the excess, if any, of the Principal Distribution Amount for
the preceding Distribution Date, over the aggregate distributions of principal
made on the Sequential Pay Certificates on the preceding Distribution Date.
"Principal Prepayment": Any payment of principal made by the
Mortgagor on a Mortgage Loan which is received in advance of its scheduled Due
Date and which is not accompanied by an amount of interest (without regard to
any Prepayment Premium that may have been collected) representing scheduled
interest due on any date or dates in any month or months subsequent to the month
of prepayment.
"Prospectus Supplement": That certain prospectus supplement dated
October 25, 2000, relating to the Class A, Class B, Class C, Class D, Class E,
Class F, Class G, Class H and Class X Certificates, that is a supplement to the
Base Prospectus.
"Purchase Price": With respect to any Mortgage Loan (and the related
Loan REMIC Interests), 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 (excluding, in the case of an ARD Loan after its Anticipated
Repayment Date, Excess 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, (c) all accrued and unpaid Advance
Interest in respect of related Advances and (d) any related unreimbursed
Additional Trust Fund Expenses. With respect to any REO Property, a price equal
to the unpaid principal balance of the related REO Loan as of the date of
purchase, together with (a) all accrued and unpaid interest (excluding, in the
case of an ARD Loan after its Anticipated Repayment Date, Excess 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, (c) all accrued and unpaid Advance Interest in respect of related
Advances, and (d) any related unreimbursed Additional Trust Fund Expenses. The
Purchase Price of any Mortgage Loan, Loan REMIC Interests 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 Moody's and S&P.
"Rated Final Distribution Date": As to each Class of Certificates,
the Distribution Date in September 15, 2032.
"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 related to the Collection Period in which the Final Recovery Determination
was made, plus (ii) all accrued but unpaid interest (excluding, in the case of
an ARD Loan after its Anticipated Repayment Date, Excess 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 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 Collection 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.
A Realized Loss with respect to HVB Loan No. 510238 or HVB Loan
No. 540310 shall be a Realized Loss with respect to the related Loan REMIC
Regular Interest.
"Record Date": With respect to each Class of Certificates, for any
Distribution Date, the last Business Day of the calendar month immediately
preceding the month in which such Distribution Date occurs.
"Registered Certificates": Any Certificate that has been
registered under the Securities Act.
"Regular Certificates": Any of the Class A-1, Class A-2, Class X,
Class B, Class C, Class D, Class E, Class F, Class G, Class H, Class J, Class K,
Class L, Class M, Class N, Class O and Class P Certificates.
"Reimbursement Rate": The rate per annum applicable to the accrual
of Advance Interest, which rate per annum shall be equal to the "prime rate" as
published in the "Money Rates" section of The Wall Street Journal, as such
"prime rate" may change from time to time. If The Wall Street Journal ceases to
publish such "prime rate", then the Trustee, in its sole discretion, shall
select an equivalent publication that publishes such "prime rate"; and if such
"prime rate" is no longer generally published or is limited, regulated or
administered by a governmental or quasi-governmental body, then the Trustee
shall select a comparable interest rate index. In either case, such selection
shall be made by the Trustee in its sole discretion and the Trustee shall notify
the Master Servicer and the Special Servicer in writing of its selection.
"Reinvestment Yield": As defined in Section 4.01(c).
"REMIC": A "real estate mortgage investment conduit" as defined in
Section 860D of the Code.
"REMIC Administrator": Wells Fargo Bank Minnesota, N. A., 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 (exclusive
of Excess Interest) 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 Sellers; (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); provided, however, that HVB Loan No. 510238 and HVB Loan No.
540310 (exclusive of Excess Interest, if any), collections thereon and any
related REO Property acquired in respect thereof shall be held as assets of the
related Loan REMICs, and the related Loan REMIC Regular Interests and
collections thereon shall be held as assets of REMIC I.
"REMIC I Distribution Amount": As defined in Section 4.01(a)(i).
"REMIC I Regular Interests": Any of the Class LA-1, Class LA-2,
Class LB, Class LC, Class LD, Class LE, Class LF, Class LG, Class LH, Class LJ,
Class LK, Class LL, Class LM, Class LN, Class LO and Class LP 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 "Wells Fargo Bank Minnesota,
N.A., as Trustee, in trust for Holders of Banc of America Commercial Mortgage
Inc., Commercial Mortgage Pass-Through Certificates, Series 2000-2, REMIC II
Distribution Account" and which account shall be an Eligible Account.
"REMIC II Regular Interests": On and after the Sequel Closing Date,
the REMIC II Uncertificated Regular Interests and the Unaffected 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 MB, Class MC, Class MD, Class ME, Class MF, Class MG and Class
MX Uncertificated Interests.
"REMIC IIU": A segregated pool of assets subject hereto and to be
administered hereunder and consisting of the Class MA-1 and Class MA-2
Uncertificated Interests and amounts distributed thereon as from time to time
are held in the REMIC IIU Distribution Account.
"REMIC IIU Distribution Account": The segregated account or accounts
created and maintained as a separate trust sub-account or sub-accounts of the
Distribution Account by the Trustee pursuant to Section 3.04, which shall be
entitled "Wells Fargo Bank Minnesota, N.A., as Trustee, in trust for Holders of
Banc of America Commercial Mortgage Inc., Commercial Mortgage Pass-Through
Certificates, Series 2000-2, REMIC IIU Distribution Account," and which account
shall be an Eligible Account.
"REMIC IIU Distribution Amount": As defined in Section 4.01(a)(i).
"REMIC IIU Regular Interests": Any of the Class UA-1 and Class UA-2
Uncertificated Interests.
"REMIC IIU Remittance Rate": With respect to any REMIC IIU Regular
Interest, the Weighted Average Adjusted Net Mortgage Rate.
"REMIC III": A segregated pool of assets subject hereto and to be
administered hereunder and consisting of the Class UA-1, Class UA-2, Class MB,
Class MC, Class MD, Class ME, Class MF, Class MG 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": Any of the Class A-1, Class A-2, Class B,
Class C, Class D, Class E, Class F, Class G, Class X and Class R-III
Certificates.
"REMIC III Distribution Account": The segregated account or accounts
created and maintained as a separate trust sub-account or accounts of the
Distribution Account by the Trustee pursuant to Section 3.04, which shall be
entitled "Wells Fargo Bank Minnesota, N.A., as Trustee, in trust for Holders of
Banc of America Commercial Mortgage Inc., Commercial Mortgage Pass-Through
Certificates, Series 2000-2, REMIC III Distribution Account," and which account
shall be an Eligible Account.
"REMIC III Regular Certificates": Any of the REMIC III Certificates
other than the Class R-III Certificates.
"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 "Lennar
Partners, Inc., as Special Servicer, in trust for registered holders of Banc of
America Commercial Mortgage Inc., Commercial Mortgage Pass-Through Certificates,
Series 2000-2, 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 and/or the Trustee in respect of such Advances, shall
continue to be payable or reimbursable to the Master 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, and (ii) 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.
"Request for Review": A request for review signed by a Servicing
Officer of, as applicable, the Master Servicer or Special Servicer in the form
of Exhibit M attached hereto.
"Required Appraisal Loan": As defined in Section 3.19(b).
"Required Claims-Paying Ratings": With respect to any insurance
carrier, claims-paying ability ratings at least equal to the following minimum
ratings assigned to such carrier by at least two of the following parties and,
in any event, by each Rating Agency that assigned a rating to the claims-paying
ability of such insurance carrier: Moody's ("A2" or better), Fitch, Inc. ("A" or
better), S&P ("A" or better) and A.M. Best ("A: VIII" or better); provided,
however, that a rating by A.M. Best shall be disregarded and shall not be
applicable 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, unless, with respect to policies maintained
by Borrowers, a higher claims-paying ability rating is required under any of the
Mortgage Loan documents.
"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-IIU or
Class R-III Certificate.
"Responsible Officer": When used with respect to the Trustee, any
officer assigned to the Corporate Trust Services Group, any vice president, any
assistant vice president, any assistant secretary, any assistant treasurer, or
any other officer of the Trustee customarily performing functions similar to
those performed by any of the above designated officers to whom a particular
matter is referred by the Trustee because of such officer's knowledge of and
familiarity with the particular subject. When used with respect to any
Certificate Registrar (other than the Trustee), any officer or assistant officer
thereof.
"Responsible Party": With respect to any Document Defect or alleged
Document Defect or any breach or alleged breach of a representation or warranty
set forth in Section 2.05(c), either: (i) Bank of America, if such Document
Defect or alleged Document Defect relates to a Bank of America Mortgage Loan, or
if such breach or alleged breach is of a representation or warranty as to which
Bank of America is the Responsible Party; or (ii) HVB, if such Document Defect
or alleged Document Defect relates to a HVB Mortgage Loan, or if such breach or
alleged breach is of a representation or warranty as to which HVB is the
Responsible Party.
"S&P": Standard & Poor's Ratings Services, a division of The
McGraw-Hill Companies, Inc. or its successor in interest. If neither such rating
agency nor any successor remains in existence, "S&P" shall be deemed to refer to
such other nationally recognized statistical rating agency or other comparable
Person designated by the Depositor, notice of which designation shall be given
to the Trustee, the Master Servicer, the Special Servicer and the REMIC
Administrator, and specific ratings of Standard & Poor's Ratings Services, a
division of the McGraw-Hill Companies, Inc. herein referenced shall be deemed to
refer to the equivalent ratings of the party so designated.
"Securities Act": The Securities Act of 1933, as amended.
"Security Agreement": With respect to any Mortgage Loan, any
security agreement, chattel mortgage or similar document or instrument, whether
contained in the related Mortgage or executed separately, creating in favor of
the holder of such Mortgage a security interest in the personal property
constituting security for repayment of such Mortgage Loan.
"Senior Certificate": Any Class A-1, Class A-2 or Class X
Certificate.
"Senior Principal Distribution Cross-Over Date": The first
Distribution Date as of which the aggregate Class Principal Balance of the Class
A Certificates outstanding immediately prior to such Distribution Date exceeds
the sum of (a) the aggregate Stated Principal Balance of the Mortgage Pool that
will be outstanding immediately following such Distribution Date, plus (b) the
lesser of (i) the Principal Distribution Amount for such Distribution Date and
(ii) the portion of the Available Distribution Amount for such Distribution Date
that will remain after the distributions of interest to be made on the Senior
Certificates on such Distribution Date have been so made.
"Sequel Closing Date": October 27, 2000.
"Sequential Pay Certificate": Any Class A, Class B, Class C, Class
D, Class E, Class F, Class G, Class H, Class J, Class K, Class L, Class M, Class
N, Class O or Class P Certificate.
"Servicer Reports": As defined in Section 4.02 (a).
"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": Subject to Section 3.19(d), 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, with respect to
the Specially Serviced Mortgage Loans, by the Master Servicer at the direction
of 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 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, 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 Master Servicer at the direction
of 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 (or, in the case of an ARD Loan after its Anticipated
Repayment Date, the related Net Mortgage Rate in effect immediately prior to
such Anticipated Repayment Date)); and (c) without regard to: (i) any
relationship that the Master Servicer or the Special Servicer, as the case may
be, or any Affiliate thereof may have with any related Mortgagor; (ii) the
ownership of any Certificate by the Master Servicer or the Special Servicer, as
the case may be, or by any Affiliate thereof; (iii) the Master Servicer's
obligation to make Advances; (iv) the Special Servicer's obligation to direct
the Master Servicer to make Servicing Advances (including Emergency Advances);
(v) the right of the Master Servicer (or any Affiliate thereof) or the Special
Servicer (or any Affiliate thereof), as the case may be, to receive compensation
for its services or reimbursement of costs hereunder or with respect to any
particular transaction; (vi) any credit that it has extended to any Mortgagor
(e.g. partnership debt) and (vii) the servicing of any other mortgage loans by
the Master Servicer or the Special Servicer.
"Servicing Transfer Event": With respect to any Mortgage Loan,
the occurrence of any of the events described in clauses (a) through (h) of
the definition of "Specially Serviced Mortgage Loan".
"Similar Law": As defined in Section 5.02(c).
"Single Certificate": For purposes of Section 4.02(a), a Certificate
of any Class of Regular Certificates evidencing a $1,000 denomination or, in the
case of a Class X Certificate, a 100% Percentage Interest.
"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": Lennar Partners, Inc., its successor in
interest, or any successor special servicer appointed as herein provided.
"Special Servicer Loan Status Report": A report or reports (which
need not be in a separate report or reports from the Servicer Reports listed in
Section 4.02(a)) setting forth, among other things, as of the close of business
on the Determination Date immediately preceding the preparation of such report
or reports, (i) the aggregate unpaid principal balance of all Specially Serviced
Mortgage Loans and (ii) a loan-by-loan listing of all Specially Serviced
Mortgage Loans indicating their status, date and reason for transfer to the
Special Servicer.
"Special Servicing Fee": With respect to each Specially Serviced
Mortgage Loan and each REO Loan, the fee designated as such and payable to the
Special Servicer pursuant to the first paragraph of Section 3.11(c).
"Special Servicing Fee Rate": With respect to each Specially
Serviced Mortgage Loan and each REO Loan, 0.25% per annum.
"Specially Serviced Mortgage Loan": Any Mortgage Loan as to which
any of the following events has occurred:
(a) the related Mortgagor has failed to make when due any Balloon
Payment, which failure has continued, or the Master Servicer determines, in its
good faith and reasonable judgment, will continue unremedied, and the Mortgagor
has not delivered to the Master Servicer, on or prior to the due date of such
Balloon Payment, a written refinancing commitment from an acceptable lender and
reasonably satisfactory in form and substance to the Master Servicer which
provides that such refinancing will occur within 60 days after the date of such
Balloon Payment (provided that if such refinancing does not occur during such
time, the related Mortgage Loan will immediately become a Specially Serviced
Mortgage Loan); 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; 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.
provided that a Mortgage Loan will cease to be a Specially Serviced Mortgage
Loan, when a Liquidation Event has occurred in respect of such Mortgage Loan,
when the related Mortgaged Property has become an REO Property, or at such time
as such of the following as are applicable occur with respect to the
circumstances identified above that caused the Mortgage Loan to be characterized
as a Specially Serviced Mortgage Loan (and provided that no other Servicing
Transfer Event then exists):
(w) with respect to the circumstances described in clauses (a) and
(b) above, the related Mortgagor has made three consecutive full and timely
Monthly Payments under the terms of such Mortgage Loan (as such terms may be
changed or modified in connection with a bankruptcy or similar proceeding
involving the related Mortgagor or by reason of a modification, waiver or
amendment granted or agreed to by the Special Servicer pursuant to Section
3.20);
(x) with respect to the circumstances described in clauses (c), (e),
(f), and (g) above, such circumstances cease to exist in the good faith and
reasonable judgment of the Special Servicer;
(y) with respect to the circumstances described in clause (d) above,
such default is cured; and
(z) with respect to the circumstances described in clause (h) above,
such proceedings are terminated.
"Standby Fee": With respect to each Mortgage Loan and each REO Loan,
the fee designated as such and payable to the Special Servicer pursuant to the
second paragraph of Section 3.11(c).
"Standby Fee Rate": With respect to each Mortgage Loan and each
REO Loan, 0.00075% per annum.
"Startup Day": With respect to each of REMIC I, REMIC II, REMIC IIU
and REMIC III, the day designated as such for each such REMIC in Section
10.01(c). With respect to the Loan REMICs, August 31, 2000.
"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 and, in the
case of an ARD Loan, without regard to its Anticipated Repayment Date.
"Stated Principal Balance": With respect to any Mortgage Loan (and
any successor REO Loan), a principal amount initially equal to the Cut-off Date
Balance of such Mortgage Loan, that is permanently reduced on each Distribution
Date (to not less than zero) by (i) all payments (or P&I Advances in lieu
thereof) of, and all other collections allocated as provided in Section 1.02 to,
principal of or with respect to such Mortgage Loan (or successor REO Loan) that
are (or, if they had not been applied to cover any Additional Trust Fund
Expense, would have been) distributed to Certificateholders on such Distribution
Date, and (ii) the principal portion of any Realized Loss incurred in respect of
such Mortgage Loan (or successor REO Loan) during the related Collection Period.
Notwithstanding the foregoing, if a Liquidation Event occurs in respect of any
Mortgage Loan or REO Property, then the "Stated Principal Balance" of such
Mortgage Loan or of the related REO Loan, as the case may be, shall be zero
commencing as of the Distribution Date in the Collection Period next following
the Collection Period in which such Liquidation Event occurred.
"Subordinate Certificate": Any Class B, Class C, Class D, Class E,
Class F, Class G, Class H, Class J, Class K, Class L, Class M, Class N, Class O,
Class P, Class V or a 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 the Loan REMICs, REMIC
I and REMIC II, the Person designated as the "tax matters person" of such REMIC
in the manner provided under Treasury Regulations Section 1.860F-4(d) and
Treasury Regulations Section 301.6231(a)(7)-1. The "Tax Matters Person" for each
of the Loan REMICs, REMIC I, REMIC II, REMIC IIU and REMIC III is the Holder of
Certificates evidencing the largest Percentage Interest in the related Class of
Residual Certificates.
"Tax Returns": The federal income tax returns on Internal Revenue
Service Form 1066, U.S. Real Estate Mortgage Investment Conduit Income Tax
Return, including Schedule Q thereto, Quarterly Notice to Residual Interest
Holders of REMIC Taxable Income or Net Loss Allocation, or any successor forms,
to be filed on behalf of each of the Loan REMICs, REMIC I, REMIC II, REMIC IIU
and REMIC III due to its classification as a REMIC under the REMIC Provisions,
together with any and all other information, reports or returns that may be
required to be furnished to the Certificateholders or filed with the Internal
Revenue Service or any other governmental taxing authority under any applicable
provisions of federal or Applicable State Law.
"Termination Strip": As defined in Section 3.22(d).
"Transfer": Any direct or indirect transfer, sale, pledge,
hypothecation, or other form of assignment of any Ownership Interest in a
Certificate.
"Transfer Affidavit and Agreement": As defined in Section
5.02(d)(i)(B).
"Transferable Portion": As defined in Section 3.11(a).
"Transferee": Any Person who is acquiring by Transfer any Ownership
Interest in a Certificate.
"Transferor": Any Person who is disposing by Transfer any Ownership
Interest in a Certificate.
"Trust": The common law trust created hereby.
"Trust Fund": Collectively, all of the assets of REMIC I, REMIC II,
REMIC IIU, REMIC III, the Loan REMICs and the Grantor Trust.
"Trust REMICs": REMIC I, REMIC II, REMIC IIU and REMIC III.
"Trustee": Wells Fargo Bank Minnesota, N.A., 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, and without giving
effect to any Excess Interest that may accrue on the ARD Loan after its
Anticipated Repayment Date.
"Trustee Fee Rate": A rate of 0.0026% per annum.
"Trustee's Website": The website maintained by the Trustee and
located at "www.ctslink.com/cmbs".
"UCC": The Uniform Commercial Code in effect in the applicable
jurisdiction.
"UCC Financing Statement": A financing statement executed and filed
pursuant to the Uniform Commercial Code, as in effect in the relevant
jurisdiction.
"UCC-1", "UCC-2" and "UCC-3": UCC financing statements on Form
UCC-1, Form UCC-2 and Form UCC-3, respectively.
"Unaffected Certificates": As defined in the Preliminary Statement.
"Uncertificated Accrued Interest": With respect to any REMIC I
Regular Interest, for any Distribution Date, one month's interest at the REMIC I
Remittance Rate applicable to such REMIC I Regular Interest for such
Distribution Date, accrued on the Uncertificated Principal Balance of such REMIC
I Regular Interest outstanding immediately prior to such Distribution Date. 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 any REMIC IIU
Regular Interest, for any Distribution Date, one month's interest at the REMIC
IIU Remittance Rate applicable to such REMIC IIU Regular Interest for such
Distribution Date, accrued on the Uncertificated Principal Balance of such REMIC
IIU 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 or REMIC IIU 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 H, Class J, Class
K, Class L, Class M, Class N, Class O and Class P 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 any REMIC IIU Regular Interest, the
Uncertificated Accrued Interest in respect of such REMIC IIU 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 MB, Class MC,
Class MD, Class ME, Class MF and Class MG Uncertificated Interests pursuant to
the preceding sentence, and to the Class H, Class J, Class K, Class L, Class M,
Class N, Class O and Class P Certificates pursuant to the definition of
"Distributable Certificate Interest," and (ii) a fraction, the numerator of
which is the Uncertificated Accrued Interest in respect of such REMIC IIU
Regular Interest for such Distribution Date, and the denominator of which is the
aggregate Uncertificated Accrued Interest in respect of all the REMIC IIU
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, 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 any Class of REMIC II
Uncertificated Regular Interests, (i) after the Sequel Closing Date and on or
prior to the first Distribution Date following the Sequel Closing Date, an
amount equal to the initial principal amount of such Class as specified in the
Preliminary Statement hereto, and (ii) as of any date of determination after the
first Distribution Date following the Sequel Closing Date, (a) other than in the
case of the Class MA-1 and Class MA-2 Uncertificated Interests, 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, (b) in the
case of the Class MA-1 Uncertificated Interest, an amount equal to the excess of
(A) the sum of the Class Principal Balances of the Class A-1 and Class A-2
Certificates on the Distribution Date immediately prior to such date of
determination over (B) the initial principal amount of the Class MA-2
Uncertificated Interest, but not less than zero, and (c) in the case of the
Class MA-2 Uncertificated Interest, an amount equal to the excess of (A) the sum
of the Class Principal Balances of the Class A-1 and Class A-2 Certificates over
(B) the Uncertificated Principal Balance of the Class MA-1 Uncertificated
Interest, in each case on the Distribution Date immediately prior to such date
of determination. With respect to any Class of REMIC IIU Uncertificated Regular
Interests, (i) after the Sequel Closing Date and on or prior to the first
Distribution Date following the Sequel Closing Date, an amount equal to the
initial principal amount of such Class as specified in the Preliminary Statement
hereto, and (ii) as of any date of determination after the first Distribution
Date following the Sequel Closing 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.
"Underwriter": Each of Banc of America Securities LLC and HVB
Capital Markets, Inc.
"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% 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% of the
Voting Rights shall be allocated to the Holders of the Class X Certificates.
None of the Class V Certificates, the Class R-I Certificates, the Class R-II
Certificates, the Class R-IIU Certificates or the Class R-III Certificates will
be entitled to any Voting Rights. 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; provided, however, that
in the case of HVB Loan No. 510238 and HVB Loan No. 540310, "Mortgage Loan"
shall refer to the related Loan REMIC Regular Interest for purposes of this
definition.
"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 (excluding, in the case of
an ARD Loan after its Anticipated Repayment Date, Excess 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; tenth, as an early recovery of any remaining principal of such
Mortgage Loan to the extent of its entire remaining unpaid principal balance;
and, eleventh, in the case of an ARD Loan after its Anticipated Repayment Date,
as a recovery of accrued and unpaid Excess Interest on such ARD Loan, to but not
including the date of receipt. The Master Servicer shall, to the fullest extent
permitted by applicable law and the related Mortgage Loan documents, apply all
payments on and proceeds of each Mortgage Loan to amounts actually due and owing
from the related Mortgagor in a manner consistent with the foregoing and shall
maintain accurate records of how all such payments and proceeds are actually
applied and are applied for purposes of this Agreement.
(b) Collections in respect of each REO Property (exclusive of
amounts to be applied to the payment of the costs of operating, managing,
maintaining and disposing of such REO Property) shall be applied for purposes of
this Agreement (including, without limitation for purposes of determining
distributions on the Certificates pursuant to Article IV and additional
compensation payable to the Master Servicer, the Special Servicer and any
Sub-Servicers) as follows: first, as a recovery of any related unreimbursed
Servicing Advances; second, as a recovery of accrued and unpaid interest
(excluding, in the case of an REO Loan that relates to an ARD Loan after its
Anticipated Repayment Date, Excess Interest) on the related REO Loan at the
related Mortgage Rate to but not including the Due Date in the Collection Period
of receipt; third, as a recovery of principal of the related REO Loan to the
extent of its entire unpaid principal balance; fourth, as a recovery of any
Prepayment Premium then due and owing under such REO Loan; fifth, as a recovery
of any other amounts (including, without limitation, Default Charges) deemed to
be due and owing in respect of the related REO Loan; and, sixth, in the case of
an REO Loan that relates to an ARD Loan after its Anticipated Repayment Date, as
a recovery of accrued and unpaid Excess Interest on such REO Loan to but not
including the date of receipt.
(c) For the purposes of calculating distributions pursuant to this
Agreement, Excess Interest on an ARD Loan shall be deemed not to constitute
principal or any portion thereof and shall not be added to the unpaid principal
balance or Stated Principal Balance of such ARD Loan. To the extent any Excess
Interest is not paid on a current basis, it shall be deemed to be deferred
interest.
(d) Insofar as amounts received in respect of any Mortgage Loan or
REO Property and allocable to fees and charges owing in respect of such Mortgage
Loan or the related REO Loan, as the case may be, that constitute additional
servicing compensation payable to the Master Servicer and/or Special Servicer
pursuant to Section 3.11, are insufficient to cover the full amount of such fees
and charges, such amounts shall be allocated between such of those fees and
charges as are payable to the Master Servicer, on the one hand, and such of
those fees and charges as are payable to the Special Servicer, on the other, pro
rata in accordance with their respective entitlements, and such payments so made
shall constitute the sole amount that will be paid to the Master Servicer and
the Special Servicer with respect thereto.
(e) The foregoing applications of amounts received in respect of any
Mortgage Loan or REO Property shall be determined by the Master Servicer and
reflected in the reports to be delivered thereby pursuant to Section 4.02(b).
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 and Loan REMIC Interests.
(a) It is the intention of the parties hereto that a common law
trust be established pursuant to this Agreement. Wells Fargo Bank Minnesota,
N. A. is hereby appointed, and does hereby agree to act, as Trustee hereunder
and, in such capacity, to hold the Trust Fund in trust for the exclusive use
and benefit of all present and future Certificateholders. It is not intended
that this Agreement create a partnership or a joint-stock association.
(b) Each of the Depositor and, at the direction of the Depositor
given pursuant to each of the Bank of America/BACM Mortgage Loan Purchase and
Sale Agreement and the HVB/BACM Mortgage Loan Purchase and Sale Agreement, each
Mortgage Loan Seller, concurrently with respective execution and delivery
hereof, does hereby assign, transfer, sell and otherwise convey to the Trustee
without recourse for the benefit of the Certificateholders and the Trustee as
holder of REMIC I Regular Interests and the Loan REMIC Interests all the right,
title and interest of the Depositor, the BOA Owner Trust II and the Mortgage
Loan Sellers, respectively, in, to and under the Mortgage Loans identified on
the Mortgage Loan Schedule, the Loan REMIC Interests, 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 Sellers; (ii) any REO Property acquired in
respect of a Mortgage Loan; (iii) the Loan REMIC Interests, and (iv) such funds
or assets as from time to time are deposited in the Certificate Account, the
Distribution Account, the REMIC II Distribution Account, the Interest Reserve
Account and the REO Account (if established).
It is intended that the conveyance of the Mortgage Loans, the Loan
REMIC Interests and the related rights and property by the Depositor, the BOA
Owner Trust II and the Mortgage Loan Sellers to the Trustee, as provided in this
Section be, and be construed as, an absolute transfer of the Mortgage Loans and
the Loan REMIC Interests 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 and the Loan REMIC Interests to the Trustee to
secure a debt or other obligation of the Depositor, the BOA Owner Trust II or
the Mortgage Loan Sellers, as the case may be. However, in the event that the
Mortgage Loans or the Loan REMIC Interests are held to be property of the
Depositor, the BOA Owner Trust II or the Mortgage Loan Sellers, or if for any
reason this Agreement is held or deemed to create a security interest in the
Mortgage Loans, then it is intended that, (i) this Agreement shall also be
deemed to be a security agreement within the meaning of Articles 8 and 9 of the
New York Uniform Commercial Code and the Uniform Commercial Code of any other
applicable jurisdiction; (ii) the conveyance provided for in this Section shall
be deemed to be a grant by the Depositor, the BOA Owner Trust II and the
Mortgage Loan Sellers and the Loan REMIC Interests 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, (C) the Loan REMIC
Interests and (D) 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 Interest Reserve, the Excess Interest Distribution Account or the
REO Account, whether in the form of cash, instruments, securities or other
property; (iii) the possession by the Trustee or its agent of the Mortgage Notes
and such other items of property as constitute instruments, money, negotiable
documents or chattel paper shall be deemed to be "possession by the secured
party" or possession by a purchaser or a Person designated by such secured
party, for purposes of perfecting the security interest pursuant to the New York
Uniform Commercial Code and the Uniform Commercial Code of any other applicable
jurisdiction (including, without limitation, Section 9-305 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 BOA Owner Trust II, the
Mortgage Loan Sellers 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 and/or
the Loan REMIC Interests, 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, or,
with respect to Mortgage Loans subject to a Sub-Servicing Agreement, the
Sub-Servicer, shall (at its or its Sub-Servicer's 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. The Depositor shall provide the Master Servicer and the Special
Servicer with a power of attorney in a form sufficient to permit the Master
Servicer and the Special Servicer to correct any deficiencies in such filings on
its behalf; provided, however, that this shall in no way limit the Depositor's
liability for such deficiencies or impose any liability whatsoever on either the
Master Servicer or the Special Servicer.
(c) In connection with the assignment pursuant to subsection (b)
above, the Mortgage Loan Sellers (at the direction of the Depositor or the BOA
Owner Trust II, as the case may be, pursuant to the Bank of America/BACM
Mortgage Loan Purchase and Sale Agreement or the HVB/BACM 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 related Mortgage Loan Seller
hereunder. If a 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 a
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 such 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 such 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 a 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 such 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 such
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 a 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 such 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 such Mortgage Loan Seller, shall deliver
to the Trustee or such Custodian, promptly following the receipt thereof and in
any event within 180 days of the Original Closing Date, 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 either 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" are delivered to the Trustee in blank, the Trustee
shall be responsible for completing promptly the related endorsement in the name
of the Trustee (in such capacity).
(d) Bank of America shall, as to each Bank of America Mortgage Loan,
and HVB shall, as to each HVB Mortgage Loan, in each such case, at its own
expense, promptly (and in any event within 45 days of the Original Closing Date,
unless recording/filing information is not available by such time for
assignments solely due to recorder's office delay, in which case such submission
shall be made promptly after such information does become available from the
recorder's office) submit or cause to be submitted for recording or filing, as
the case may be, in the appropriate public office for real property records or
UCC Financing Statements, as appropriate, each assignment referred to in clauses
(iii) and (v) of the definition of "Mortgage File" and each UCC-1, UCC-2 and
UCC-3, if any, referred to in clause (xi)(B) of the definition of "Mortgage
File". Each such assignment shall reflect that it should be returned by the
public recording office to the party responsible for filing it, who will then
forward the original recorded document to the Trustee, 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 it, and who will then forward such document to
the Trustee. 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, Bank of America, in the case of the Bank of America Mortgage Loans, and
HVB, in the case of the HVB Mortgage Loans, shall in each such case 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 Bank of America, in
the case of Bank of America Mortgage Loans, and HVB, in the case of the HVB
Mortgage Loans, shall in each such case, at its own expense, submit the
substitute or corrected documents or cause such to be submitted for recording or
filing, as appropriate.
(e) All documents and records in either 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 either Mortgage Loan Seller (or, in either
case, under its control) with respect to the Mortgage Loans, shall be delivered
or caused to be delivered by the appropriate Mortgage Loan Seller, to the Master
Servicer, within five (5) Business 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) Bank of America shall, as to each Bank of America Mortgage Loan
which is secured by the interest of the related Mortgagor under a Ground Lease,
and HVB shall, as to each HVB Mortgage Loan which is secured by the interest of
the related Mortgagor under a Ground Lease, in each case at its own expense,
promptly (and in any event within 45 days of the Original Closing Date) notify
the related ground lessor of the transfer of such Mortgage Loan to the Trust
pursuant to this Agreement and inform such ground lessor that any notices of
default under the related Ground Lease should thereafter be forwarded to the
Trustee, and shall provide copies of such notices to the Master Servicer.
(g) In connection with its assignment of the Bank of America
Mortgage Loans hereunder, each of Bank of America and the BOA Owner Trust II
hereby expressly assigns to the Trustee for the benefit of the
Certificateholders any and all rights Bank of America or the BOA Owner Trust II
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 Bank of America and the NB Conduit Originator that originated
such Mortgage Loan pursuant to which Bank of America originally acquired such
Mortgage Loan from such NB Conduit Originator. In the event such Mortgage Loan
is repurchased by Bank of America, the Trustee shall re-assign such rights under
the relevant mortgage loan purchase agreement to Bank of America 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 of, subject to the
provisions of Section 2.01 and to the further review provided for in this
Section 2.02, and further subject to the Schedule of Exceptions attached hereto
as Schedule III, 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 Sellers in respect of the Mortgage Loans and the Loan REMIC
Regular Interests, and that it holds and will hold all other assets included in
the Loan REMICs and REMIC I, in trust for the exclusive use and benefit of all
present and future Certificateholders and the Trustee as holder of the REMIC I
Regular Interests and the Loan REMIC Interests.
(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
Sellers 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, the Directing
Certificateholder 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
with respect to a title policy or the date of funding with respect to a title
commitment) 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 each 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. If within 60 days of the Original
Closing Date the Trustee shall receive notice of any Mortgage Loan as to which a
Servicing Transfer Event or substitution has occurred during such 60-day period,
the Trustee shall, upon receipt of a Request for Review (substantially in the
form of Exhibit M), promptly review the Mortgage File delivered or caused to be
delivered by the related Mortgage Loan Seller with respect to such Mortgage
Loan. Such review and the certification regarding the same shall be conducted
and prepared in accordance with the standards of review set forth in this
paragraph.
(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 no later than 180 days after the Original Closing
Date, and subsequently no later than one (1) year after the Original Closing
Date and, if any exceptions are noted, every 90 days thereafter until either (i)
all exceptions have been removed, or (ii) the second anniversary of the Original
Closing Date, the Trustee shall, subject to Section 2.02(d), certify in writing
(substantially in the form of Exhibit H) to each of the Depositor, the Master
Servicer, the Special Servicer, the Directing Certificateholder and the Mortgage
Loan Sellers 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 with respect to a title policy
or the date of funding with respect to a title commitment) 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 each
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 Sellers 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) None of the Trustee, the Master Servicer, the Special Servicer
or any Custodian is under any duty or obligation (i) to determine whether any of
the documents specified in clauses (iv) through (viii), (x) and (xi), and (xiv)
through (xxi) of the definition of "Mortgage File" exist or are required to be
delivered by the Mortgage Loan Sellers 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 valid, legal, effective, genuine, binding, enforceable, sufficient
or appropriate for the represented purpose or that they are other than what they
purport to be on their face. Furthermore, none of the Trustee, the Master
Servicer, the Special Servicer or any Custodian shall have any liability because
the text of any assignment or endorsement is not in proper or recordable form,
if the requisite recording of any document is not in accordance with the
requirements of any applicable jurisdiction, or if a blanket assignment is not
permitted in any applicable jurisdiction.
(e) If, in the process of reviewing the documents delivered or
caused to be delivered by the Mortgage Loan Sellers 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, Bank of America, if a Bank of America
Mortgage Loan is affected, or HVB if a HVB Mortgage Loan is affected shall
promptly, correct such error and distribute a new, corrected Mortgage Loan
Schedule to each of the other parties hereto. Such new, corrected Mortgage Loan
Schedule shall be deemed to amend and replace the existing Mortgage Loan
Schedule.
SECTION 2.03 Mortgage Loan Sellers' Repurchase of Mortgage Loans
for Document Defects and Certain Breaches of
Representations and Warranties.
(a) Within 90 days of the earlier of (i) discovery by any
Responsible Party, or (ii) receipt of written notice by any Responsible Party
from any party to this Agreement of its discovery of, a Document Defect in
respect of any Mortgage Loan or a breach of any representation or warranty set
forth in Section 2.05(c) in respect of any Mortgage Loan, which Document Defect
or breach, as the case may be, materially and adversely affects the value of
such Mortgage Loan or the interests of the Certificateholders therein, the
Responsible Party shall cure such Document Defect or breach, as the case may be,
in all material respects or repurchase (or if the Responsible Party is Bank of
America, cause an Affiliate to purchase) the affected Mortgage Loan (together
with the related Loan REMIC Interests, if applicable) 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 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 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;
(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 Trustee 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
Trustee prompt notice, whereupon the Trustee shall notify the Responsible Party
to cure such Document Defect, or, failing that, repurchase the related Mortgage
Loan, all in accordance with the procedures set forth herein. However, with
respect to non-Specially Serviced Mortgage Loans only, if such Document Defect
or breach is capable of being cured but not within the 90 day period and the
Responsible Party has commenced and is diligently proceeding with the cure of
such Document Defect or breach within such 90 day period (as evidenced by an
Officer's Certificate of the Responsible Party delivered to the Trustee, the
Special Servicer 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 Responsible Party shall have, with respect to non-Specially
Serviced Mortgage Loans only, an additional 90 days to complete such cure (or,
failing such cure, to repurchase the related Mortgage Loan). Notwithstanding the
immediately preceding sentence, within 90 days of the earlier of discovery or
receipt of written notice by the Responsible Party that there is a Document
Defect or other breach of the representations and warranties 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 Responsible Party shall either
cure such defect or breach or repurchase such Mortgage Loan at the applicable
Purchase Price by deposit of such Purchase Price into the Certificate Account
and delivery to the Trustee of a written certification that such deposit has
been made. In connection with a repurchase of HVB Loan No. 510238 and HVB Loan
No. 540310, as contemplated by this Section 2.03(a), the REMIC Administrator
shall effect a "qualified liquidation" of the related Loan REMIC in accordance
with the REMIC Provisions.
(b) In connection with any repurchase of a Mortgage Loan (and the
related Loan REMIC Interests, if applicable) contemplated by this Section 2.03,
the Trustee, the Master Servicer and the Special Servicer shall each tender or
cause to be tendered to the Responsible Party, upon delivery to each of the
Trustee, the Master Servicer and the Special Servicer of a receipt executed by
the Responsible Party, all portions of the Mortgage File and other documents and
funds pertaining to such Mortgage Loan possessed by it (or any Custodian or
Sub-Servicer on its behalf), and each document that constitutes a part of the
Mortgage File that was endorsed or assigned to the Trustee shall be endorsed or
assigned, as the case may be, to or at the direction of the Responsible Party,
in the same manner. The form, sufficiency and expense of all such instruments
and certificates shall be the responsibility of the Responsible Party.
(c) This Section 2.03 provides the sole remedies available to the
Certificateholders, or to the Trustee on behalf of the Certificateholders,
respecting any Document Defect or any breach of any representation or warranty
set forth in Section 2.05(b) hereof. If the Responsible Party defaults on its
obligations to repurchase any Mortgage Loan in accordance with Section 2.03(a)
hereof, or disputes its obligation to repurchase any Mortgage Loan in accordance
with any such provision, the Trustee shall promptly notify the
Certificateholders and, subject to Sections 8.01 and 8.02 and its right to
reimbursement pursuant to Section 8.05(b), shall take such action as may be
appropriate to enforce such payment or performance, including, without
limitation, the institution and prosecution of appropriate proceedings. If it is
judicially determined or subsequently agreed that the Responsible Party is
required to repurchase such Mortgage Loan under Section 2.03(a) hereof, the
Responsible Party shall reimburse the Trustee for all necessary and reasonable
costs and expenses incurred in connection with such enforcement, and otherwise
the Trustee's right of reimbursement shall be limited to amounts on deposit in
the Distribution Account from time to time in accordance with Section 8.05(b)
and to such other sources of security and indemnity as shall have been offered
to the Trustee by the Certificateholders.
(d) With respect to any Cross-Collateralized Mortgage Loan, the
repurchase requirements of this Section 2.03 shall apply to any other Mortgage
Loans with which such Mortgage Loan is cross-collateralized or cross-defaulted.
(e) Anything else in this Section 2.03 to the contrary
notwithstanding, upon the receipt of notice by the Master Servicer from either
any related Mortgagor under HVB Loan No. 510238 or HVB Loan No. 540310, or BACM
or any successor or assign thereof, that such Mortgagor intends to defease the
related Mortgage Loan on a date on or prior to the second anniversary of the
Startup Day of the related Loan REMIC (such date, the "Prepayment Date") in
accordance with the terms of the Mortgage Loan and so long as the related
Mortgagor is not then in default, HVB shall, unless such Mortgage Loan is
modified under Section 3.20 of this Agreement to extend such defeasance until
after the second anniversary of the Startup Day of the related Loan REMIC,
repurchase such Mortgage Loan on prior to such Prepayment Date at the Purchase
Price, by payment of such Purchase Price by wire transfer of immediately
available funds to the Certificate Account, and shall deliver to the Trustee and
the Master Servicer a written confirmation that such deposit into the
Certificate Account has been made. In addition, if such repurchase results in
the imposition of a "prohibited transaction" or "contribution" tax under the
REMIC Provisions, HVB agrees to indemnify and hold BACM and its successors and
assigns, including the related Loan REMIC, REMIC I and the Trustee on behalf of
the Certificateholders, harmless against any and all losses, claims, damages or
liabilities, joint or several, to which they or any of them may become subject.
In connection with the repurchase of HVB Loan No. 510238 or HVB Loan
No. 540310 pursuant to or as contemplated by this Section 2.03(e), the REMIC
Administrator shall effect a "qualified liquidation" of the related Loan REMIC
in accordance with the REMIC Provisions.
SECTION 2.04 Representations and Warranties of the Depositor.
(a) The Depositor hereby represents and warrants to each of the
other parties to this Agreement and for the benefit of the Certificateholders,
as of the Original Closing Date and the Sequel Closing Date unless otherwise
stated below, that:
(i) The Depositor is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware.
(ii) The execution and delivery of this Agreement by the
Depositor, and the performance and compliance with the terms of this
Agreement by the Depositor, will not violate the Depositor's certificate
of incorporation or bylaws or constitute a default (or an event which,
with notice or lapse of time, or both, would constitute a default) under,
or result in the breach of, any material agreement or other instrument to
which it is a party or which is applicable to it or any of its assets.
(iii) The Depositor has the full power and authority to enter
into and consummate all transactions contemplated by this Agreement, has
duly authorized the execution, delivery and performance of this Agreement,
and has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by each of the other parties hereto, constitutes a valid, legal
and binding obligation of the Depositor, enforceable against the Depositor
in accordance with the terms hereof, subject to (A) applicable bankruptcy,
insolvency, reorganization, moratorium and other laws affecting the
enforcement of creditors' rights generally, and (B) general principles of
equity, regardless of whether such enforcement is considered in a
proceeding in equity or at law.
(v) The Depositor is not in violation of, and its execution and
delivery of this Agreement and its performance and compliance with the
terms of this Agreement will not constitute a violation of, any law, any
order or decree of any court or arbiter, or any order, regulation or
demand of any federal, state or local governmental or regulatory
authority, which violation, in the Depositor's good faith and reasonable
judgment, is likely to affect materially and adversely either the ability
of the Depositor to perform its obligations under this Agreement or the
financial condition of the Depositor.
(vi) 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) Assuming the accuracy of the representation and warranty
of Bank of America and HVB made pursuant to Section 2.05(c)(i) hereof,
immediately prior to the transfer of the Mortgage Loans by the Depositor
to the Trustee hereunder, 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.
In the case of HVB Loan No. 510238 and HVB Loan No. 540310, such
representations, warranties and covenants shall also apply to the Loan REMIC
Regular Interests.
(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
Sellers.
(a) Bank of America hereby represents and warrants to the other
parties hereto and for the benefit of the Certificateholders, as of the Original
Closing Date and the Sequel Closing Date unless otherwise stated below, that:
(i) Bank of America is a national banking association duly
organized, validly existing and in good standing under the laws of the
United States. The BOA Owner Trust II 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 Bank of
America and the BOA Owner Trust II, and the performance and compliance
with the terms of this Agreement by Bank of America and the BOA Owner
Trust II, will not violate Bank of America's or the BOA Owner Trust II'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 Bank of America and the BOA Owner Trust II 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 Bank of America and the BOA Owner Trust II,
enforceable against each of Bank of America and the BOA Owner Trust II 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 BOA Owner Trust II nor Bank of America 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 Bank of
America's good faith and reasonable judgment, is likely to affect
materially and adversely either the ability of Bank of America or the BOA
Owner Trust II to perform its obligations under this Agreement or the
financial condition of Bank of America or the BOA Owner Trust II.
(vi) No litigation is pending or, to the best of Bank of
America's knowledge, threatened against Bank of America or the BOA Owner
Trust II which would prohibit Bank of America or the BOA Owner Trust II
from entering into this Agreement or, in Bank of America or the BOA Owner
Trust II's good faith and reasonable judgment, is likely to materially and
adversely affect either the ability of Bank of America or the BOA Owner
Trust II to perform its obligations under this Agreement or the financial
condition of Bank of America or the BOA Owner Trust II.
(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, Midland Loan Services, Inc. (provided,
however, that Midland Loan Services, Inc. is sub-servicing Mortgage
Loans pursuant to a separate Confirmation), Berkshire Mortgage Finance
Bethesda Limited Partnership and Prudential Multifamily Mortgage, Inc.
complies with the requirements of this Agreement.
(viii) Bank of America 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) HVB hereby represents and warrants to the other parties hereto
and for the benefit of the Certificateholders, as of the Original Closing Date
and the Sequel Closing Date unless otherwise stated below, that:
(i) HVB is a corporation duly organized, validly existing and in
good standing under the laws of the State of New York.
(ii) The execution and delivery of this Agreement by HVB, and the
performance and compliance with the terms of this Agreement by HVB, will
not violate HVB's certificate of incorporation and by-laws or constitute a
default (or an event which, with notice or lapse of time, or both, would
constitute a default) under, or result in the breach of, any material
agreement or other instrument to which it is a party or which is
applicable to it or any of its assets.
(iii) HVB 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 HVB, enforceable against HVB 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) HVB 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 HVB's good faith and reasonable judgment, is likely to
affect materially and adversely either the ability of HVB to perform its
obligations under this Agreement or the financial condition of HVB.
(vi) No litigation is pending or, to the best of HVB's knowledge,
threatened against HVB which would prohibit HVB from entering into this
Agreement or, in HVB's good faith and reasonable judgment, is likely to
materially and adversely affect either the ability of HVB to perform its
obligations under this Agreement or the financial condition of HVB.
In the case of HVB Loan No. 510238 and HVB Loan No. 540310, such
representations, warranties and covenants shall also apply to the Loan REMIC
Regular Interests.
Bank of America Mortgage Loan and HVB Mortgage Loan Representations
-------------------------------------------------------------------
(c) Bank of America hereby represents and warrants (and,
accordingly, is the "Responsible Party" with respect to each such representation
or warranty so made) with respect to (but solely with respect to) each Bank of
America Mortgage Loan and 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, and HVB
hereby represents and warrants (and, accordingly, is the "Responsible Party"
with respect to each such representation or warranty so made) with respect to
(but solely with respect to) each HVB Mortgage Loan and to the other parties
hereto and for the benefit of 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 Bank of
America or the BOA Owner Trust II to the Trustee, in the case of a Bank of
America Mortgage Loan, or the transfer thereof by HVB to BACM, in the case
of a HVB Mortgage Loan, each of Bank of America, the BOA Owner Trust II or
HVB, as the case may be, had good and marketable title to, and was the
sole owner and holder of, its respective Mortgage Loan, free and clear of
any and all liens, encumbrances and other interests on, in or to such
Mortgage Loan.
(ii) Bank of America or the BOA Owner Trust II, as the case
may be, had full right and authority to sell, assign and transfer such
Mortgage Loan to the Trustee, and HVB had the full right and authority to
sell, assign and transfer such HVB Mortgage Loan to BACM.
(iii) The information pertaining to such Mortgage Loan set
forth in the Mortgage Loan Schedule was true and correct in all material
respects as of the Cut-off Date.
(iv) Such Mortgage Loan was not, as of the Cut-off Date or at
any time during the twelve-month period prior thereto, 30 days or more
delinquent in respect of any Monthly Payment of principal and/or interest
required thereunder, without giving effect to any applicable grace period.
Such non-delinquent status with respect to principal and/or interest is
not due to any advance made by the Responsible Party or the BOA Owner
Trust II.
(v) 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 or parity with 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 affect the
value of the Mortgaged Property, 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, and, in the case of
each Mortgaged Property which constitutes a hotel, or theater, such
personal property constitutes substantially all the personal property
required to operate such business.
(vi) The lien of each related Mortgage is insured by an ALTA
lender's title insurance policy, or its equivalent as adopted in the
applicable jurisdiction, issued by a nationally recognized title insurance
company, insuring the originator of the related Mortgage Loan, its
successors and assigns, as to the first priority lien of the Mortgage in
the original principal amount of the related Mortgage Loan after all
advances of principal, subject only to Permitted Encumbrances (or, if a
title insurance policy has not yet been issued in respect of any Mortgage
Loan, a policy meeting the foregoing description is evidenced by a binding
commitment for title insurance "marked-up" at the closing of such loan.
The Responsible Party and its successors and 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 Responsible 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. Such
policy is assignable to the Trustee without the consent of, or
notification to, the insurer.
(vii) Neither Responsible Party nor the BOA Owner Trust II 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) Except as described in Schedule 9, neither Responsible
Party has actual knowledge that there is any proceeding pending or
threatened for the total or partial condemnation of the related Mortgaged
Property, and there is no 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
applicable Responsible 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). Each related Mortgage contains
customary and enforceable provisions such as to render the rights and
remedies of the holder thereof adequate for the practical realization
against the Mortgaged Property of the security, including realization by
judicial or, if applicable, non-judicial foreclosure, and, in its
assignment of rents provision, permits the appointment of a receiver to
collect such rents.
(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) rental insurance in an amount
equal to the gross rentals for at least a 6-month period, and (3)
comprehensive general liability insurance coverage, covering at
least $1,000,000 per occurrence.
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 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) 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 June 1997, and the Responsible
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 related Responsible
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 and in
Schedule 15, 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 related Responsible Party, at origination of such
Mortgage Loan, there were no delinquent water charges or sewer rents)
affecting the related Mortgaged Property.
(xviii) Except as described in Schedule 18, the interest of
the Mortgagor in the related Mortgaged Property consists of a fee simple
and/or leasehold or sub-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) Except as described in Schedule 21, 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 related
Responsible Party or its agents (which shall include the Master Servicer),
and all the Depositor's, the BOA Owner Trust II's and the related
Responsible 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 (except Mortgaged Properties for which the use or
Improvements are legally nonconforming), 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,
and any subsequent holder(s) of such Mortgage Loan, were 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
related Responsible 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 Responsible Party with respect to the Mortgage
Loans in this Section 2.05(c).
(xxvi) If such Mortgage Loan is secured in whole or in part by
the interest of a Mortgagor under a Ground Lease and by the related fee
interest, such fee interest is subordinate to the related Mortgage and the
related Mortgage does not by its terms provide that it will be
subordinated to the lien of any mortgage or any other lien upon such fee
interest.
(xxvii) Except as described in Schedule 27, 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, other than the ARD Loans,
provide for the negative amortization of interest.
(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) Except as described in Schedule 29, to the related
Responsible 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 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 related Responsible 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 related Responsible Party or, to the knowledge of
the related Responsible 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) Except as described in Schedule 35, 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); provided, however, that, at the related Bank of America
Sub-Servicer's option, although its Sub-Servicing duties shall terminate
to the extent transferred to the Special Servicer, the related Bank of
America Sub-Servicer may retain the Mortgage Loans on its computer systems
while such Mortgage Loans are Specially Serviced Mortgage Loans (without
any compensation therefor). Any such Mortgage Loan retained on the
computer system of a Sub-Servicer shall be subject to the rights of the
Special Servicer so long as such Mortgage Loan is a Specially Serviced
Mortgage Loan.
(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, including the
collection of rent rolls, financial statements and operating statements to
the extent that that Mortgagor is required to provide such pursuant to the
Mortgage Loan Documents.
(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 related
Responsible 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 Operating Income 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 Bank of America or HVB, as applicable, 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 a debtor in any federal bankruptcy proceeding,
or, to the best of the related Responsible Party's actual knowledge, a
debtor in any state insolvency proceeding.
(xlii) There is no pending litigation or other legal
proceedings involving the related Mortgagor or the related Mortgaged
Property that can reasonably be expected to materially interfere with the
security intended to be provided by the related Mortgage, the current use
of the related Mortgaged Property, or the current ability of the Mortgaged
Property to generate Net Operating Income sufficient to service the
Mortgage Loan.
(xliii) 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 Responsible Party
nor the BOA Owner Trust II has waived such covenants and has no knowledge
that any such Mortgagor is not in compliance therewith as of the date of
origination of the Mortgage Loan.
(xliv) Except as described in Schedule 44, 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(c).
(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,
and neither Responsible Party has actual knowledge that the Mortgaged
Property secures any Mortgage Loan outside the Trust.
(xlvi) [Reserved].
(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 or a Ground Sub-Lease of the
related Mortgaged Property, but not by the related fee interest in such
Mortgaged Property, the Responsible 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.
The Ground Lease is, and provides that it shall remain, prior
to any Mortgage or other lien upon the related fee interest;
or, with respect to Loan No. 51961 and Loan No. 51962, the
related fee interest is unencumbered as of the Original
Closing Date and the related superior Ground Lease is
encumbered by a Mortgage which does not secure any monetary
obligations by the related Mortgagor;
(C) Under the terms of the Ground Lease and the related Mortgage,
any related insurance proceeds or condemnation award with
respect to the leasehold interest will be applied, in the sole
discretion of the holder of the related Mortgage, to either
(1) the repair or restoration of all or part of the related
Mortgaged Property, or (2) 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. 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) Except as described in Schedule 48 (provided, however, that
the related title insurance policy does not take exception
therefor), the related Mortgagor's interest in the Ground
Lease is assignable, upon the foreclosure of such Mortgage
Loan (or acceptance of a deed in lieu thereof) or otherwise,
to the mortgagee 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) and, in the event that it is so assigned, it is further
assignable by the mortgagee and its successors and assigns
upon notice to, but without a need to obtain the consent of,
such lessor;
(F) As of the date of origination, the Ground Lease was in full
force and effect and, as of the Original Closing Date, to the
related Responsible Party's actual knowledge, no default has
occurred under the Ground Lease and 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) Except as described in Schedule 48, 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 related Mortgagor under such Ground Lease
(and the related Mortgage insofar as it relates to the Ground
Lease) may be exercised by or on behalf of the related
mortgagee;
(I) Except as described in Schedule 48, such Ground Lease does not
impose any restrictions on subletting which would be viewed as
commercially unreasonable by an institutional investor. 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 described in Schedule 48, 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 lessor has subordinated its interest in the
related Mortgaged Property to the interest of the holder of
the Mortgage Loan or (B) the related lessor has granted the
holder of the Mortgage Loan the right to notice and a
reasonable time to cure any default or breach by the lessee
thereunder, including such time as is necessary to gain
possession of the Mortgaged Property, by foreclosure or
otherwise if possession is necessary in order to effect such
cure;
(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 20 years beyond the
stated maturity of the related Mortgage Loan, or, if not 20
years, at least 10 years beyond such stated maturity date
(those Mortgage Loans in this latter category are described in
Schedule 48); and
(M) With respect to Loan Nos. 51961 and 51962, to the extent any
action, or failure to act, by the owner of the condominium
unit which is not the Mortgaged Property constitutes a default
under the Ground Lease, the mortgagee is entitled to notice
and an opportunity to cure such default under the Ground Lease
as mortgagee of the condominium unit that is the Mortgaged
Property.
(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
Responsible 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 Responsible 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) except as described in Schedule 53, 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 (including rating agencies' fees,
accounting fees and attorneys' fees), and must provide for (a) an
accountant's certification as to the adequacy of the defeasance collateral
to make payments under the related Mortgage Loan for the remainder of its
term, (b) an Opinion of Counsel that the defeasance complies with all
applicable REMIC Provisions, and (c) a letter from the Rating Agencies
that the defeasance will not result in the withdrawal, downgrade or
qualification of the ratings assigned to the Certificates. Notwithstanding
the foregoing, although some of the Bank of America Mortgage Loan
documents do not affirmatively contain all such requirements, such
requirements are effectively present due to the general obligation to
comply with the REMIC Provisions and deliver a REMIC Opinion of Counsel.
(liv) Except as described in Schedule 54, under the terms of
the related Mortgage Loan documents, 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, neither Responsible Party has taken any action which would
materially impair such policy, and to each Responsible Party's actual
knowledge, no other person has taken any action which would materially
impair such policy.
(lvii) Each Mortgage Loan originated by a Responsible Party or
by one of its approved originators was underwritten consistent in all
material respects with the standards of the related Responsible 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, neither Responsible Party has
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) 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) Bank of America or HVB, as applicable, took no action
in selecting such Mortgage Loans for sale to the Depositor which to the
related 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 related Mortgage Loan Seller's actual portfolio of
commercial mortgage loans.
(lxiii) If such Mortgage Loan is an ARD Loan, it commenced
amortizing on its initial scheduled Due Date and provides that: (i) except
as described in Schedule 63, its Mortgage Rate will increase to no more
than the greater of (A) the original Mortgage Rate plus two percentage
points or (B) the interest rate applicable for certain non-callable U.S.
Treasury obligations of comparable terms (as more specifically described
in the related Mortgage Note) plus two percentage points in connection
with the passage of its Anticipated Repayment Date; (ii) its Anticipated
Repayment Date is not less than seven years following the origination of
such Mortgage Loan; (iii) any cash flow from the related Mortgaged
Property that is applied to amortize such Mortgage Loan following its
Anticipated Repayment Date shall, to the extent such net cash flow is in
excess of the Monthly Payment payable therefrom, be net of budgeted and
discretionary (Master Servicer approved) capital expenditures; and (iv) if
the property manager for the related Mortgaged Property can be removed by
or at the discretion of the lender on the basis of a debt service coverage
test, the subject debt service coverage ratio shall be calculated without
taking account of any increase in the related Mortgage Rate on such
Mortgage Loan's Anticipated Repayment Date. No ARD Loan provides that the
property manager for the related Mortgaged Property can be removed by or
at the direction of the lender solely because of the passage of the
related Anticipated Repayment Date.
(d) It is understood and agreed that the representations and
warranties set forth in this Section 2.05 shall survive delivery of the
respective Mortgage Files to the Trustee or a Custodian on its behalf and shall
inure to the benefit of the Persons for whose benefit they were made for so long
as the Trust remains in existence, notwithstanding any restrictive or qualified
endorsement or assignment. Upon discovery by any of the parties hereto of a
breach of any of the representations and warranties set forth in 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, each Rating Agency and the Directing
Certificateholder. Bank of America has no obligation to cure any breach of any
representation or warranty made by HVB with respect to a HVB Mortgage Loan nor
to repurchase any HVB Mortgage Loan. It is also further understood and agreed
that HVB makes no representations or warranties with regard to the Bank of
America Mortgage Loans and that HVB has no obligation to cure any breach of any
representation or warranty made by Bank of America with respect to a Bank of
America Mortgage Loan nor to repurchase any Bank of America Mortgage Loan.
SECTION 2.06 Representations and Warranties of the Master
Servicer.
(a) The Master Servicer hereby represents and warrants to the other
parties hereto and for the benefit of the Certificateholders, as of the Original
Closing Date and the Sequel Closing Dates 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 and the Sequel Closing Date unless otherwise stated below, that:
(i) The Special Servicer is duly organized, validly existing and
in good standing as a corporation under the laws of the State of Florida,
and the Special Servicer is in compliance with the laws of each State in
which any Mortgaged Property is located to the extent necessary to perform
its obligations under this Agreement.
(ii) The execution and delivery of this Agreement by the Special
Servicer, and the performance and compliance with the terms of this
Agreement by the Special Servicer, will not violate the Special Servicer's
organizational documents or constitute a default (or an event which, with
notice or lapse of time, or both, would constitute a default) under, or
result in the breach of, any material agreement or other instrument to
which it is a party or which is applicable to it or any of its assets,
which default, in the Special Servicer's good faith and reasonable
judgment, is likely to materially and adversely effect either the ability
of the Special Servicer to perform its obligations under this Agreement or
the financial condition of the Special Servicer.
(iii) The Special Servicer has the full corporate power and
authority to enter into and consummate all transactions contemplated by
this Agreement, has duly authorized the execution, delivery and
performance of this Agreement, and has duly executed and delivered this
Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by each of the other parties hereto, constitutes a valid, legal
and binding obligation of the Special Servicer, enforceable against the
Special Servicer in accordance with the terms hereof, subject to (A)
applicable bankruptcy, insolvency, reorganization, moratorium and other
laws affecting the enforcement of creditors' rights generally, and (B)
general principles of equity, regardless of whether such enforcement is
considered in a proceeding in equity or at law.
(v) The Special Servicer is not in violation of, and its
execution and delivery of this Agreement and its performance and
compliance with the terms of this Agreement will not constitute a
violation of, any law, any order or decree of any court or arbiter, or any
order, regulation or demand of any federal, state or local governmental or
regulatory authority, which violation, in the Special Servicer's good
faith and reasonable judgment, is likely to affect materially and
adversely either the ability of the Special Servicer to perform its
obligations under this Agreement or the financial condition of the Special
Servicer.
(vi) No litigation is pending or, to the best of the Special
Servicer's knowledge, threatened against the Special Servicer which would
prohibit the Special Servicer from entering into this Agreement or, in the
Special Servicer's good faith and reasonable judgment, is likely to
materially and adversely affect either the ability of the Special Servicer
to perform its obligations under this Agreement or the financial condition
of the Special Servicer.
(vii) Each officer or employee of the Special Servicer that has
responsibilities concerning the servicing and administration of the
Mortgage Loans is covered by errors and omissions insurance in the amounts
and with the coverage required by Section 3.07(c). None of the Special
Servicer or any of its respective officers or employees that is involved
in the servicing or administration of the Mortgage Loans has been refused
such coverage or insurance.
(b) The representations and warranties of the Special Servicer set
forth in Section 2.07(a) shall survive the execution and delivery of this
Agreement and inure to the benefit of the Persons for whose benefit they were
made for so long as the Trust remains in existence. Upon discovery by any of the
parties hereto of a breach of any of such representations and warranties which
materially and adversely affects the interests of the Certificateholders or any
party hereto, the party discovering such breach shall give prompt written notice
to each of the other parties hereto.
(c) Each successor Special Servicer (if any) shall be deemed to have
made, as of the date of its succession, each of the representations set forth in
Section 2.07(a), subject to such appropriate modifications to the representation
and warranty set forth in Section 2.07(a)(i) to accurately reflect such
successor's jurisdiction of organization and whether it is a corporation,
partnership, bank, association or other type of organization.
SECTION 2.08 Representations and Warranties of the Trustee and the
REMIC Administrator.
(a) Wells Fargo Bank Minnesota, N. A. both in its capacity as
Trustee and in its capacity as REMIC Administrator (the "Bank"), hereby
represents and warrants to the other parties hereto and for the benefit of the
Certificateholders, as of the Original Closing Date and the Sequel Closing Date
unless otherwise stated below, that:
(i) The Bank is a national bank duly organized, validly existing
and in good standing under the laws of the United States and is, shall be
or, if necessary, shall appoint a co-trustee that is, in compliance with
the laws of each State in which any Mortgaged Property is located to the
extent necessary to ensure the enforceability of each Mortgage Loan and to
perform its obligations under this Agreement.
(ii) The execution and delivery of this Agreement by the Bank,
and the performance and compliance with the terms of this Agreement by the
Bank, do not violate the Bank's organizational documents or constitute a
default (or an event which, with notice or lapse of time, or both, would
constitute a default) under, or result in the breach of, any material
agreement or other instrument to which it is a party or which is
applicable to it or any of its assets, which default, in the Bank's good
faith and reasonable judgment, is likely to materially and adversely
affect either the ability of the Bank to perform its obligations under
this Agreement or the financial condition of the Bank.
(iii) The Bank has the full power and authority to enter into and
consummate all transactions contemplated by this Agreement, has duly
authorized the execution, delivery and performance of this Agreement, and
has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by each of the other parties hereto, constitutes a valid, legal
and binding obligation of the Bank, enforceable against the Bank in
accordance with the terms hereof, subject to (A) applicable bankruptcy,
insolvency, reorganization, moratorium and other laws affecting the
enforcement of creditors' rights generally, and (B) general principles of
equity, regardless of whether such enforcement is considered in a
proceeding in equity or at law.
(v) The Bank is not in violation of, and its execution and
delivery of this Agreement and its performance and compliance with the
terms of this Agreement will not constitute a violation of, any law, any
order or decree of any court or arbiter, or any order, regulation or
demand of any federal, state or local governmental or regulatory
authority, which violation, in the Bank's good faith and reasonable
judgment, is likely to affect materially and adversely either the ability
of the Bank to perform its obligations under this Agreement or the
financial condition of the Bank.
(vi) No litigation is pending or, to the best of the Bank's
knowledge, threatened against the Bank which would prohibit the Bank from
entering into this Agreement or, in the Bank's good faith and reasonable
judgment, is likely to materially and adversely affect either the ability
of the Bank to perform its obligations under this Agreement or the
financial condition of the Bank.
(b) The representations and warranties of the Bank set forth in
Section 2.08(a) shall survive the execution and delivery of this Agreement and
shall inure to the benefit of the Persons for whose benefit they were made for
so long as the Trust remains in existence. Upon discovery by any of the parties
hereto of a breach of any of such representations and warranties which
materially and adversely affects the interests of the Certificateholders or any
party hereto, the party discovering such breach shall give prompt written notice
to each of the other parties hereto.
(c) Each successor Trustee or REMIC Administrator (if any and
regardless of whether the Trustee and the REMIC Administrator are different
Persons) shall be deemed to have made, as of the date of its succession, each of
the representations set forth in Section 2.08(a), subject to such appropriate
modifications to the representation and warranty set forth in Section 2.08(a)(i)
to accurately reflect such successor's jurisdiction of organization and whether
it is a corporation, partnership, bank, association or other type of
organization. In any such case, the term "Bank" shall be deemed to mean such
successor Trustee or the REMIC Administrator, as appropriate.
SECTION 2.09 Issuance of the Class R-I Certificates; Creation of
the REMIC I Regular Interests.
Concurrently with the assignment to the Trustee of the assets
included in REMIC I, and in exchange therefor, at the direction of the
Depositor, the REMIC I Regular Interests have been issued hereunder 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 REMIC II to
receive distributions from the proceeds of REMIC I in respect of the Class R-I
Certificates and the REMIC I Regular Interests, respectively, and all ownership
interests of the Class R-I Certificateholders and REMIC II in and to such
distributions, shall be as set forth in this Agreement.
SECTION 2.10 Conveyance of REMIC I Regular Interests; Acceptance
of REMIC II by the Trustee.
The Depositor, as of the Original Closing Date, and concurrently
with the execution and delivery hereof, has assigned 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 Class R-IIU Certificates, the REMIC
IIU Regular Interests and the REMIC III Certificates. As of the Original Closing
Date, the Trustee has acknowledged the assignment to it of the REMIC I Regular
Interests and as of the Sequel Closing Date declares that it holds and will
continue to hold the same in trust for the exclusive use and benefit of all
present and future Holders of the Class R-II Certificates, the Class R-IIU
Certificates, the Unaffected Certificates and the REMIC III Certificates and the
Trust as holder of the REMIC II Uncertificated Regular Interests and the REMIC
IIU Regular Interests.
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, have been issued as of the Original
Closing Date and the Trustee has executed, authenticated and delivered to or
upon the order of the Depositor, the Class R-II Certificates in authorized
denominations. As of the Sequel Closing Date, the Class MA-1 and Class MA-2
Uncertificated Interests have been issued to the Depositor in exchange for the
Class UA-1 and Class UA-2 Uncertificated Regular Interests and the Class MB,
Class MC, Class MD, Class ME, Class MF and Class MG Uncertificated Interests
have been issued to the Depositor in exchange for the Certificates designated as
the Class B, Class C, Class D, Class E, Class F and Class G Certificates under
the Original 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 Certificates and the Trustee
for the benefit of REMIC IIU and REMIC III 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 and Class MA-2
Uncertificated Interests; Acceptance of such
Interests by the Trustee.
The Depositor, as of the Sequel Closing Date, and concurrently with
the execution and delivery hereof, does hereby assign without recourse all the
right, title and interest of the Depositor in and to the Class MA-1 and Class
MA-2 Uncertificated Interests to the Trustee for the benefit of the Holders of
the REMIC IIU Regular Interests, the Class R-IIU Certificates and the REMIC III
Certificates. The Trustee acknowledges the assignment to it of the Class MA-1
and Class MA-2 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 Class R-IIU Certificates and the REMIC III Certificates and the
Trust as a holder of the REMIC IIU Regular Interests.
SECTION 2.13 Issuance of the Class R-IIU Certificates; Creation of
the REMIC IIU Regular Interests.
Concurrently with the assignment to the Trustee of the assets
included in REMIC IIU, and in exchange therefor, at the direction of the
Depositor, the REMIC IIU Regular Interests have been issued as of the Sequel
Closing Date and the Trustee has executed, authenticated and delivered to or
upon the order of the Depositor, the Class R-IIU Certificates in authorized
denominations. The interests evidenced by the REMIC IIU Regular Interests and
the Class R-IIU Certificates constitute the entire beneficial ownership of REMIC
IIU. The rights of the Class R-IIU Certificateholder and the Trustee for the
benefit of the REMIC III Certificates to receive distributions from the proceeds
of REMIC IIU shall be as set forth in this Agreement.
SECTION 2.14 Conveyance of the Class UA-1, Class UA-2, Class MB,
Class MC, Class MD, Class ME, Class MF and Class MG Uncertificated Interests;
Acceptance of such Interests by the Trustee.
The Depositor, as of the Sequel Closing Date, and concurrently with
the execution and delivery hereof, does hereby assign without recourse all
right, title and interest of the Depositor in and to the Class UA-1, Class UA-2,
Class MB, Class MC, Class MD, Class ME, Class MF and Class MG Uncertificated
Interests to the Trustee for the benefit of the Holders of the REMIC III
Certificates. The Trustee acknowledges the assignment to it of the Class UA-1,
Class UA-2, Class MB, Class MC, Class MD, Class ME, Class MF and Class MG
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 Certificates.
SECTION 2.15 Issuance of the REMIC III Certificates.
Concurrently with the assignment to the Trustee of assets included
in REMIC III, and in exchange therefor, at the direction of the Depositor, the
REMIC III Certificates have been issued as of the Sequel Closing Date and the
Trustee has executed, authenticated and delivered to or upon the order of the
Depositor, the Class A-1, Class A-2, Class B, Class C, Class D, Class E, Class
F, Class G, Class X and Class R-III Certificates in authorized denominations.
The interests evidenced by the REMIC III Certificates constitute the entire
beneficial ownership of REMIC III. The rights of the REMIC III Certificates to
receive distributions from the proceeds of REMIC III 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, 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 or, subject to Section 3.22, through
Sub-Servicers, in which case the Sub-Servicers shall so act (including the
execution of documents on behalf of the Master Servicer on behalf of the Trustee
described in clause (i) and clause (iii) of the next sentence; provided,
however, that execution of the documents described in clause (iii) of the next
sentence shall require the consent of the Master Servicer), 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; and, provided, further, that neither
the Master Servicer nor the Special Servicer shall, with respect to any ARD Loan
after its Anticipated Repayment Date, take any enforcement action with respect
to the payment of Excess Interest (other than the making of requests for its
collection), unless (i) the taking of an enforcement action with respect to the
payment of other amounts due under such Mortgage Loan is, in the good faith and
reasonable judgment of the Special Servicer, and without regard to such Excess
Interest, also necessary, appropriate and consistent with the Servicing Standard
or (ii) all other amounts due under such Mortgage Loan have been paid, the
payment of such Excess Interest has not been forgiven in accordance with Section
3.20 and, in the good faith and reasonable judgment of the Special Servicer, the
Liquidation Proceeds expected to be recovered in connection with such
enforcement action will cover the anticipated costs of such enforcement action
and, if applicable, any associated Advance Interest. Consistent with the
foregoing, the Master Servicer or the Special Servicer each may waive any
Default Charges in connection with any specific delinquent payment on a Mortgage
Loan it is obligated to service hereunder.
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
written 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 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); (v) disburse
Insurance Proceeds if required to be applied to the repair or restoration of the
related Mortgaged Property; or (vi) 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 related Mortgagor 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 within two (2) Business Days after receipt 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. With respect to Loan No. 51961 and Loan No. 51962, the
Master Servicer shall pay any ground rents, real estate taxes, assessments and
other similar items which are attributable to one of the two commercial
condominium units if the unrelated owner of that unit which is not the Mortgaged
Property fails to pay such ground rents, real estate taxes, assessments and
other similar items, to the extent that such unpaid ground rents, real estate
tax, assessments and other similar items are or could become a lien on the
Mortgaged Property, from the reserve established for such purpose, or, if
necessary, as a Servicing Advance.
(c) In accordance with the Servicing Standard, the Master Servicer
shall, as to all the Mortgage Loans (but at the direction of the Special
Servicer in the case of Specially Serviced Mortgage Loans), advance with respect
to the related Mortgaged Property all such funds as are necessary for the
purpose of effecting the payment of (i) real estate taxes, assessments and other
similar items, (ii) ground rents or other rents (if applicable), and (iii)
premiums on Insurance Policies, in each instance if and to the extent Escrow
Payments (if any) collected from the related Mortgagor are insufficient to pay
such item when due and the related Mortgagor has failed to pay such item on a
timely basis, and provided that the particular advance would not, if made,
constitute a Nonrecoverable Servicing Advance (any determination that such
advance would be a Nonrecoverable Servicing Advance shall be made in accordance
with Section 3.11(g)). All such advances shall be reimbursable in the first
instance from related collections from the Mortgagors and further as provided in
Section 3.05(a). No costs incurred by the Master Servicer 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; provided, however,
that with respect to Mortgage Loan No. 51673, funds which would otherwise be
held in the Reserve Accounts may be held in deposit accounts with, and serviced
by, Bank of America and only Bank of America. If such funds are not held by Bank
of America, they must be held in a Reserve Account which is an Eligible Account.
The Special Servicer shall within two (2) Business Days after receipt 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 IIU
Distribution Account and the REMIC III Distribution
Account.
(a) The Master Servicer shall establish and maintain one or more
accounts (collectively, the "Certificate Account"), held on behalf of the
Trustee in trust for the benefit of the Certificateholders. The Certificate
Account shall be an Eligible Account. The Master Servicer shall deposit or cause
to be deposited in the Certificate Account, within two Business Days of receipt
(in the case of payments by Mortgagors or other collections on or in respect of
the Mortgage Loans) or as otherwise required hereunder, the following payments
and collections received or made by or on behalf of it subsequent to the Cut-off
Date (other than in respect of principal, interest and any other amounts due and
payable on the Mortgage Loans on or before the Cut-off Date, which payments
shall be delivered promptly to the applicable Mortgage Loan Seller or its
related 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 as provided in Section
3.05(a)(viii);
(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;
(ix) any proceeds from the repurchase of Mortgage Loans by
a Mortgage Loan Seller under Section 2.03 of this Agreement; and
(x) all payments on account of Excess Interest.
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 on accounts held by the
Special Servicer 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, the REMIC II
Uncertificated Regular Interests, the REMIC IIU 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.
All such amounts deposited in respect of HVB Loan No. 510238 and/or
HVB Loan No. 540310 shall be deemed to be distributed in respect of the Loan
REMIC Regular Interests and the Loan REMIC Residual Interests as set forth in
the Loan REMIC Declarations.
(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 IIU 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)(iv) 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 Certificates 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 IIU
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 IIU
Regular Interests and the Certificateholders (other than the holders of the
Unaffected Certificates and the Class R-I and Class R-II Certificateholders).
The REMIC IIU 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 IIU 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 and Class MA-2 Uncertificated
Interests, respectively, pursuant to Section 4.01(a)(ii) and Section 4.01(c)(iv)
hereof on such date and (ii) to withdraw from the REMIC IIU Distribution Account
and distribute to the holders of the Class R-IIU Certificates on such
Distribution Date the portion of the Available Distribution Amount to be
distributed in respect thereof pursuant to Section 4.01(a)(v) on such date.
(e) 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 Holders of the REMIC III
Certificates. The REMIC III Distribution Account shall be established and
maintained as an Eligible Account. With respect to each Distribution Date, the
Trustee shall be deemed (i) to withdraw from the REMIC IIU 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 UA-1 and Class UA-2
Uncertificated Interests, respectively, pursuant to Section 4.01(a)(ii) and
Section 4.01(c)(iv) hereof on such date and (ii) to withdraw from the REMIC IIU
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 MB,
Class MC, Class MD, Class ME, Class MF and Class MG Uncertificated Interests
pursuant to Section 4.01(a)(ii) and Section 4.01(c)(iv) hereof on such date.
(f) 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 IIU Distribution Account
and the REMIC III 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 and (ii) the
Sequel Closing Date, in the case of the REMIC IIU Distribution Account and the
REMIC III 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 and the Excess Interest Distribution Account the Master Servicer
Remittance Amount for, and, to the extent permitted or required by Section
4.03(a) or Section 4.06, as applicable, 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;
(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 and Standby Fees;
(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 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
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 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 (to the extent such Advance Interest
will not be reimbursable from Default Charges to the extent contemplated
by the immediately following clause (viii)) 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 or the Master Servicer, as applicable,
in that order, any Advance Interest due and owing thereto, the Trustee'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) (for the avoidance of doubt, it is intended that the related
Sub-Servicers shall receive such Default Charges allocable to the period
when such Mortgage Loan was not a Specially Serviced Mortgage Loan, even
if such Default Charges are actually collected after the Mortgage Loan
becomes a Specially Serviced Mortgage Loan);
(ix) at or following such time as the Master Servicer reimburses
itself 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 clauses (vii) and (viii)
above, to pay the Trustee 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 (subject, however, to Section 3.19(e) of this Agreement) 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
(subject, however, to Section 3.05(a)(viii), above) 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), (E) the cost of
recording this Agreement in accordance with Section 11.02(a), and (F) the
costs and expenses related to enforcement of the Environmental Policy
under Section 3.27;
(xiv) to pay itself, the Special Servicer, the Majority
Certificateholder of the Controlling Class, the Mortgage Loan Sellers, 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, to the
extent that the Trustee has incurred expenses reimbursable by the
Depositor under Section 8.13, 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 deposit into 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. Any amounts withdrawn from
the Certificate Account pursuant to clauses (ii) through (xvii) above that are
specific to HVB Loan No. 510238 or HVB Loan No. 540310 shall be allocated to the
related Loan REMIC, and any amount so withdrawn that is not specific to a
particular Mortgage Loan shall be allocated by the REMIC Administrator among
REMIC I and the Loan REMICs in proportion to the Stated Principal Balances of
their related Mortgage Loans.
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 (xviii) 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 or before the related Distribution Date the
Available Distribution Amount and Prepayment Premiums to be distributed in
respect of the REMIC I Regular Interests;
(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(h), 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(d) 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 the Loan REMICs, REMIC I, REMIC II, REMIC IIU or REMIC III or
on the assets or transactions of any such REMIC, together with all
incidental costs and expenses, and any and all reasonable expenses
relating to tax audits, if and to the extent that either (1) none of the
Trustee, the Master Servicer, the Special Servicer or the REMIC
Administrator is liable therefor pursuant to Section 10.01(d) and/or
Section 10.01(h) or (2) any such Person that may be so liable has failed
to timely make the required payment, and (B) reimburse the REMIC
Administrator for reasonable expenses incurred by and reimbursable to it
by the Trust pursuant to Section 10.01(d) and/or Section 10.01(h); and
(vii) to clear and terminate the Distribution Account at the
termination of this Agreement pursuant to Section 9.01.
Taxes imposed on the Loan REMICs, REMIC I, REMIC II, REMIC IIU or
REMIC III shall be allocated to the related REMIC, and amounts withdrawn from
the Distribution Account pursuant to clauses (ii) through (v) above shall be
allocated by the REMIC Administrator among REMIC I and the Loan REMICs in
proportion to the Stated Principal Balances of their related Mortgage Loans.
(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 IIU 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 and Class MA-2 Uncertificated
Interests on each Distribution Date pursuant to Sections 4.01(a)(i) and
4.01(c)(iv) or Section 9.01, as applicable, and (B) 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 MB, Class MC, Class MD, Class ME, Class MF, Class MG and
Class MX Uncertificated Interests on each Distribution Date pursuant to Sections
4.01(a)(i) and 4.01(c)(iv) 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 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 to 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 IIU Distribution Account for any of the following purposes: to deposit
into the REMIC III Distribution Account the portion of the Available
Distribution Amount and Prepayment Premiums to be distributed in respect of the
REMIC IIU Regular Interests on each Distribution Date pursuant to Section
4.01(a)(ii) and Section 4.01(c)(iv) or Section 9.01, as applicable; and (ii)
shall make withdrawals from the REMIC IIU Distribution Account for any of the
following purposes: (A) to make distributions to Holders of the Class R-IIU
Certificates pursuant to Section 4.01(a)(v) or Section 9.01, as applicable, and
(B) to clear and terminate the REMIC IIU Distribution Account at the termination
of this Agreement pursuant to Section 9.01.
(e) The Trustee shall make withdrawals from the REMIC III
Distribution Account for the following purposes: (A) to make distributions on
the Class A-1, Class A-2, Class B, Class C, Class D, Class E, Class F, Class G,
and Class X Certificates on each Distribution Date pursuant to Sections 4.01(b),
4.01(c)(i) or Section 9.01, as applicable, and (B) to make distributions to
Holders of the Class R-III Certificates pursuant to Section 4.01(b) 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.
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 and the
Excess Interest Distribution 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 and the Excess Interest Distribution
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
and the Servicing Account) or the Special Servicer (in the case of the REO
Account) and the Trustee (in the case of the Interest Reserve Account and the
Excess Interest Distribution 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 or the Special Servicer as the case
may be, that such Permitted Investment would not constitute a Permitted
Investment in respect of funds thereafter on deposit in the Investment
Account.
(b) Whether or not the Master Servicer directs the investment of
funds in the Certificate Account and the Servicing 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 and the Excess Interest Distribution 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 the
Excess Interest Distribution 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 Loan (subject to applicable law), provided
that if any Mortgage permits the holder thereof to dictate to the Mortgagor the
insurance coverage to be maintained on such Mortgaged Property, the Master
Servicer or the Special Servicer, as appropriate, shall impose such insurance
requirements as are consistent with the Servicing Standard. The Special Servicer
shall direct the Master Servicer to maintain 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 Master 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 by the
Master Servicer at the direction of the Special Servicer under Section 3.07(a)
which is reimbursable to the Master Servicer 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
Master Servicer at the direction of 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,
shall constitute a Servicing Advance which is reimbursable to the Master
Servicer pursuant to and to the extent permitted under Section 3.05(a).
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 right it has, or
grant any consent it is otherwise entitled to withhold, under any related
"due-on-sale" clause, other than, to the extent any such Mortgage Loans
are recourse, 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 and a request for approval of the assumption by
the Directing Certificateholder or Special Servicer, as the case may be,
(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; 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 (1) shall have
provided, at least ten (10) 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 a request for approval of a
waiver of the due-on-encumbrance clause by the Directing Certificateholder or
Special Servicer, as the case may be, and (2) upon request made within such ten
(10) 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) in the case of the Master Servicer, shall have obtained the
prior written approval of the Special Servicer of a waiver of the
due-on-encumbrance clause; and provided, further, that, notwithstanding anything
to the contrary contained herein, neither the Master Servicer nor the Special
Servicer shall waive any right it has, or grant any consent it is otherwise
entitled to withhold, under any related "due-on-encumbrance" clause, until it
has received written confirmation from each Rating Agency that such action would
not result in the 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 or waiver of a
due-on-encumbrance clause of a Mortgage Loan, the Special Servicer shall notify
the Master Servicer of its decision within ten (10) 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.
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;
provided that neither the Master Servicer nor the Special Servicer shall, with
respect to any ARD Loan after its Anticipated Repayment Date, take any
enforcement action with respect to the payment of Excess Interest (other than
the making of requests for its collection) unless (i) the taking of an
enforcement action with respect to the payment of other amounts due under such
Mortgage Loan is, in the good faith and reasonable judgment of the Special
Servicer, and without regard to such Excess Interest, also necessary,
appropriate and consistent with the Servicing Standard or (ii) all other amounts
due under such Mortgage Loan have been paid, the payment of such Excess Interest
has not been forgiven in accordance with Section 3.20 and, in the good faith and
reasonable judgment of the Special Servicer, the Liquidation Proceeds expected
to be recovered in connection with such enforcement action will cover the
anticipated costs of such enforcement action and, if applicable, any associated
Advance Interest. The Special Servicer shall 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 the Master
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 the
Loan REMICs, REMIC I, REMIC II, REMIC IIU and REMIC III to fail to qualify
as a REMIC at any time that any Certificate is outstanding or, subject to
Section 3.17, cause the imposition of a tax on the Trust under the REMIC
Provisions.
(c) Notwithstanding the foregoing provisions of this Section 3.09,
neither the Special Servicer nor the Master Servicer shall, on behalf of the
Trustee, initiate foreclosure proceedings, obtain title to a Mortgaged Property
in lieu of foreclosure or otherwise, have a receiver of rents appointed with
respect to any Mortgaged Property, or take any other action with respect to any
Mortgaged Property, if, as a result of any such action, the Trustee, on behalf
of the Certificateholders, would be considered to hold title to, to be a
"mortgagee-in-possession" of, or to be an "owner" or "operator" of such
Mortgaged Property within the meaning of CERCLA or any comparable law, unless
(as evidenced by an Officer's Certificate to such effect delivered to the
Trustee) the Special Servicer has previously determined in accordance with the
Servicing Standard, based on a Phase I Environmental Assessment (and any
additional environmental testing that the Special Servicer deems necessary and
prudent) of such Mortgaged Property performed by an Independent Person who
regularly conducts Phase I Environmental Assessments and such additional
environmental testing, that:
(i) the Mortgaged Property is in compliance with applicable
environmental laws and regulations or, if not, that taking such actions as
are necessary to bring the Mortgaged Property in compliance therewith and
proceeding against the Mortgaged Property is reasonably likely to produce
a greater recovery to Certificateholders on a present value basis (the
relevant discounting of anticipated collections that will be distributable
to Certificateholders to be performed at the related Net Mortgage Rate
(or, in the case of an ARD Loan after its Anticipated Repayment Date, at
the related Net Mortgage Rate immediately prior to the Anticipated
Repayment Date)), 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
(or, in the case of an ARD Loan after its Anticipated Repayment Date, at
the related Net Mortgage Rate immediately prior to the Anticipated
Repayment Date)), 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).
No Phase I Environmental Assessment shall be older than twelve (12)
months; provided, however, that if the Phase I Environmental Assessment is
between twelve (12) and eighteen (18) months old, then the Special Servicer
shall furnish an updated data base search; provided further, that if the Phase I
Environmental Assessment is older than eighteen (18) months, then the Special
Servicer shall furnish an entirely new Phase I Environmental Assessment.
(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 related 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 J, Class K, Class L, Class M, Class N, Class O
and Class P 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, based upon data furnished to the Master
Servicer by the Special Servicer, within 45 days after calendar year end, shall
file the information returns with respect to the receipt of any mortgage
interest received in a trade or business, 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
defaulted Mortgage Loan or REO Property and the basis thereof. Each Final
Recovery Determination shall be evidenced by an Officer's Certificate delivered
to the Trustee, 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 (but in no event later
than four (4) Business Days following such request) 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, and without giving effect to any Excess Interest that may accrue
on any ARD Loan after its Anticipated Repayment Date. The Servicing Fees with
respect to HVB Loan No. 510238 or HVB Loan No. 540310 shall be expenses of REMIC
I in respect of the related Loan REMIC Regular Interests, payable at the same
time and in the same manner as any other Servicing Fees. 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 and at its expense, 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 0.02% per annum.
(b) The Master Servicer shall be entitled to receive as
additional servicing compensation:
(i) Default Charges (subject, however, to Section 3.05(a)(viii)
of this Agreement), 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 for the
related Collection Period 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 (subject, however, to Section 3.19(e) of this Agreement);
(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 (v) above, the Master Servicer shall, in turn,
pay the amounts described therein to the related Sub-Servicer to the extent such
Sub-Servicer is entitled thereto under the applicable Sub-Servicing Agreement.
The Master Servicer shall be required to pay out of its own funds
all expenses incurred by it in connection with its servicing activities
hereunder (including, without limitation, payment of any amounts due and owing
to any Sub-Servicer retained by it and the premiums for any blanket policy
insuring against hazard losses pursuant to Section 3.07(b)), if and to the
extent such expenses are not payable directly out of the Certificate Account, or
Servicing Accounts or Reserve Accounts, as applicable, and the Master Servicer
shall not be entitled to reimbursement therefor except as expressly provided in
this Agreement.
(c) As compensation for its activities hereunder, the Special
Servicer shall be entitled to receive the Special Servicing Fee with respect to
each Specially Serviced Mortgage Loan and each REO Loan. As to each Specially
Serviced Mortgage Loan and REO Loan, the Special Servicing Fee shall accrue from
time to time at the Special Servicing Fee Rate on the 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, and without giving
effect to any Excess Interest that may accrue on any ARD Loan after its
Anticipated Repayment Date. 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) and applicable law, and without giving
effect to any Excess Interest that may accrue on any ARD Loan after its
Anticipated Repayment Date. Standby Fees shall be payable monthly by the Master
Servicer on a loan-by-loan basis out of its Master Servicing Fees received or as
advanced by the Master Servicer with respect to each Mortgage Loan and each REO
Loan.
As further compensation for its activities hereunder, the Special
Servicer shall be entitled to receive the Workout Fee with respect to each
Corrected Mortgage Loan, unless the basis on which such Mortgage Loan became a
Corrected Mortgage Loan was the remediation of a circumstance or condition
relating to the related 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, 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 related 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, in the case of an ARD Loan after its Anticipated Repayment Date, Excess
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, the Special
Servicer or the Majority Certificateholder of the Controlling Class pursuant to
Section 3.18 or Section 9.01, or by the related 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, (excluding any portion of such payoff and/or proceeds that represents
accrued but unpaid Excess Interest with respect to an ARD Loan after its
Anticipated Repayment Date or accrued but unpaid Default Interest); provided
that no Liquidation Fee will be payable with respect to any such Specially
Serviced Mortgage Loan that becomes a Corrected Mortgage Loan; and provided,
further, that (without limiting the Special Servicer's right to any Workout Fee
that is properly payable therefrom), no Liquidation Fee will be payable from, or
based upon the receipt of, Liquidation Proceeds collected as a result of any
purchase of a Specially Serviced Mortgage Loan or REO Property described in the
parenthetical to the first sentence of this paragraph or in connection with a
condemnation or other governmental taking of a Mortgaged Property or REO
Property.
Notwithstanding anything to the contrary herein, a Liquidation Fee
and a Workout Fee relating to the same Mortgage Loan shall not be paid from the
same proceeds on or with respect to such Mortgage Loan.
The Special Servicer's right to receive the Special Servicing Fee,
the Standby Fee, the Workout Fee and/or the Liquidation Fee may not be
transferred in whole or in part except in connection with the transfer of all of
the Special Servicer's responsibilities and obligations under this Agreement.
(d) The Special Servicer shall be entitled to receive as additional
special servicing compensation:
(i) (A) to the extent allocable to the period when any Mortgage
Loan is a Specially Serviced Mortgage Loan or to the extent allocable to
an REO Loan, any Net Default Charges actually collected on such Mortgage
Loan or REO Loan for the related Collection Period, as the case may be;
provided, however, that only those Net Default Charges which accrue on or
after the Mortgage Loan becomes a Specially Serviced Mortgage Loan shall
be payable hereunder, and (B) assumption fees, modification fees, charges
for beneficiary statements or demands and any similar fees (excluding
Prepayment Premiums) actually collected on or with respect to Specially
Serviced Mortgage Loans or REO Loans; and
(ii) interest or other income earned on deposits in the REO
Account, if established, in accordance with Section 3.06(b) (but only to
the extent of the Net Investment Earnings, if any, with respect to the REO
Account for each Collection Period).
To the extent the amounts described in clause (i)(B) of the
preceding paragraph are collected by the Master Servicer, the Master Servicer
shall promptly pay such amounts to the Special Servicer and shall not be
required to deposit such amounts in the Certificate Account pursuant to Section
3.04(a). Additional servicing compensation to which the Master Servicer (or, if
so provided by the applicable Sub-Servicing Agreement, any Sub-Servicer retained
thereby) is entitled pursuant to Section 3.11(b) in the form of assumption fees,
modification fees, charges for beneficiary statements or demands and any similar
fees (excluding Prepayment Premiums) collected by the Special Servicer on
Mortgage Loans that are not Specially Serviced Mortgage Loans or REO Loans, or
in the form of amounts collected for checks returned for insufficient funds with
respect to any Mortgage Loans (including, without limitation, Specially Serviced
Mortgage Loans), shall be paid promptly to the Master Servicer by the Special
Servicer.
The Special Servicer shall be required to pay out of its own funds
all overhead, general and administrative expenses incurred by it in connection
with its servicing activities hereunder (including, without limitation, payment
of any amounts due and owing to any Sub-Servicers retained by it and the
premiums for any blanket policy obtained by it insuring against hazard losses
pursuant to Section 3.07(b)), if and to the extent such expenses are not payable
directly out of the Certificate Account or the REO Account and the Master
Servicer is not required to advance such expenses at the direction of the
Special Servicer, and the Special Servicer shall not be entitled to
reimbursement except as expressly provided in this Agreement.
(e) If the Master Servicer is required under this Agreement to make
a Servicing Advance, but does not do 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, give notice of such failure to
the Master Servicer. If such Servicing Advance is not made by the Master
Servicer within five (5) Business Days after such notice, then (subject to
Section 3.11(g) below) the Trustee shall make such Servicing Advance. Any
failure by the Master Servicer to make a Servicing Advance it is required to
make hereunder shall constitute an Event of Default by the Master Servicer,
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 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 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,
neither the Master Servicer (at the direction of the Special Servicer in the
case of Specially Serviced Mortgage Loans) nor 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 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, the Special Servicer 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 (at the direction of the Special Servicer in the case of
Specially Serviced Mortgage Loans) 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 (at the
direction of the Special Servicer in the case of Specially Serviced Mortgage
Loans) 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 2001, 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, 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, or
(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 (i) within 15 days of the preparation thereof, deliver to the Directing
Certificateholder, the Rating Agencies, each other and the Trustee, which shall
then, as required by Section 8.12(b), upon written request of a Class J, Class
K, Class L, Class M, Class N, Class O and Class P Certificateholder, deliver to
such Holder a copy of and (ii) upon request by any such Person, 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, quarterly or other periodic operating statements and rent rolls of the
related Mortgaged Property or REO Property (and financial statements of the
related Mortgagor in the case of a Mortgage Loan), whether or not delivery of
such items is required pursuant to the terms of the related Mortgage. The
Special Servicer, in the case of the Specially Serviced Mortgage Loans and REO
Properties, and the Master Servicer, in the case of all other Mortgage Loans,
shall promptly: (i) review all such items as may be collected; (ii) subject to
Section 4.02(b), prepare written reports based on such reviews identifying the
revenues, expenses, Net Operating Income`and Debt Service Coverage Ratios for
the related Mortgage Loans, REO Loans and the related Mortgaged Properties and
any extraordinary increases or decreases in expenses or revenues associated with
the related Mortgaged Properties and REO Properties (or, in the case of
Specially Serviced Mortgage Loans shall deliver such reports or related data
fields as reasonably requested by the Master Servicer); and (iii) subject to
Section 4.02(b), deliver copies of the collected items supporting the reports,
and deliver the written reports prepared in respect thereof, upon request, to
the Directing Certificateholder, the Rating Agencies, each other and the
Trustee, in each case within 30 days of the later of receipt of such collected
items or request 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 J, Class K, Class L, Class M, Class
N, Class O and Class P 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 Rating Agencies, the Depositor and the Trustee, which shall, as required by
Section 8.12(b), upon written request of a Class J, Class K, Class L, Class M,
Class N, Class O and Class P Certificateholder, deliver a copy to such Holder,
with a copy to the Depositor, on or before April 30 of each year, beginning
April 30, 2001, 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, 2001 (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 Rating Agencies and the Trustee, which shall promptly
deliver a copy to the Directing Certificateholder and, as required by Section
8.12(b), upon request of a Class J, Class K, Class L, Class M, Class N, Class O
and Class P Certificateholder, to 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 and the Trustee as holder of the related Loan REMIC
Regular Interests and the REMIC I Regular Interests. 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 the Loan REMICs, REMIC I, REMIC II, REMIC IIU or
REMIC III as defined in Section 860F of the Code or cause either of the Loan
REMICs, REMIC I, REMIC II, REMIC IIU or REMIC III to fail to qualify as a REMIC
at any time that any Certificates are outstanding. If the Special Servicer is
granted the REO Extension contemplated by clause (i) of the immediately
preceding sentence or obtains the Opinion of Counsel contemplated by clause (ii)
of the immediately preceding sentence, the Special Servicer shall sell such REO
Property within such period longer than three years following the year that such
property was acquired, as is permitted by such REO Extension or such Opinion of
Counsel, as the case may be. Any reasonable expense incurred by the Special
Servicer in connection with its being granted the REO Extension contemplated by
clause (i) of the second preceding sentence or its obtaining the Opinion of
Counsel contemplated by clause (ii) of the second preceding sentence, shall be
an expense of the Trust payable out of the Certificate Account pursuant to
Section 3.05(a)~ Any REO Extension shall be requested by the Special Servicer no
later than 60 days before the end of the third calendar year following the year
in which the Trust acquired ownership of the related REO Property.
(b) The Special Servicer shall segregate and hold all funds
collected and received in connection with any REO Property separate and apart
from its own funds and general assets. If an REO Acquisition shall occur, the
Special Servicer shall establish and maintain one or more accounts
(collectively, the "REO Account"), to be held on behalf of the Trustee in trust
for the benefit of the Certificateholders, for the retention of revenues and
other proceeds derived from each REO Property. The REO Account shall be an
Eligible Account and may consist of one account for all the REO Properties. The
Special Servicer shall deposit, or cause to be deposited, in the REO Account,
within two Business Days of receipt, all REO Revenues, Liquidation Proceeds (net
of all Liquidation Expenses paid therefrom) and Insurance Proceeds received in
respect of an REO Property. The Special Servicer is authorized to pay out of
related Liquidation Proceeds any Liquidation Expenses incurred in respect of an
REO Property and outstanding at the time such proceeds are received. Funds in
the REO Account may be invested 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 calendar month, 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).
(e) The REO Properties and the related REO Accounts with
respect to HVB Loan No. 510238 and HVB Loan No. 540310 shall be treated as
assets of the related Loan REMICs for all purposes of this Agreement.
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 REO 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 Defaulted 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 the Special Servicer, by the Trustee. In determining whether any
offer received from the Special Servicer 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
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
applicable law or 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 for making such
copies (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 three (3)
consecutive Monthly Payments, and no other Servicing Transfer Event has occurred
with respect thereto during such three (3) 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 annually,
the Appraisal Reduction Amount, if any, with respect to such loan.
(c) The Master Servicer and the Special Servicer shall each deliver
to the other and to the Trustee (for inclusion in the Mortgage File) 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 J, Class K, Class
L, Class M, Class N, Class O and Class P Certificateholder, pursuant to Section
8.12(b), the Trustee shall 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 which
were made by the Special Servicer (notwithstanding the fact that it has no
obligation to make such Servicing Advances), but not previously reimbursed
(whether pursuant to 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 confirmed by both parties and in
a timely manner that does not materially and adversely affect the interests of
any Certificateholder, and accompanied by sufficient information for the Master
Servicer to make recoverability determinations, and at least seven (7) 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, 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 (5) 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 and
to determine recoverability. 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). The Master Servicer shall be
entitled to reimbursement for any Servicing Advance made by it at the direction
of the Special Servicer, together with Advance Interest thereon, at the same
time, in the same manner and to the same extent as the Master Servicer is
entitled with respect to any other Servicing Advance made thereby.
Notwithstanding the foregoing provisions of this Section 3.19(d) or
any other provision of this Agreement to the contrary, the Master Servicer shall
not be required to reimburse the Special Servicer for, or make at the Special
Servicer's direction, any Servicing Advance if the Master Servicer determines in
its reasonable, good faith judgment that the Servicing Advance which the Special
Servicer is directing the Master Servicer to reimburse it for or make hereunder,
although not characterized by the Special Servicer as a Nonrecoverable Servicing
Advance, is or would be, if made, a Nonrecoverable Servicing Advance. The Master
Servicer shall notify the Special Servicer and the Trustee in writing of such
determination. Such notice shall not obligate the Special Servicer to make such
Servicing Advance.
(e) The Master Servicer shall deliver to the Trustee for deposit in
the Distribution Account on each Master Servicer Remittance Date, without any
right of reimbursement therefor, an amount equal to the lesser of (i) the
aggregate of all Prepayment Interest Shortfalls incurred in connection with
Principal Prepayments received in respect of the Mortgage Pool during the most
recently ended Collection Period, and (ii) that portion of its aggregate Master
Servicing Fee for the related Collection Period that is, in the case of each and
every Mortgage Loan and REO Loan, calculated at 0.02% per annum, together with
the aggregate Prepayment Interest Excesses received during such Collection
Period.
(f) Except under the same circumstances that it would be permitted
to waive a prepayment lockout provision in the subject Mortgage Loan pursuant to
Section 3.20(a), neither the Master Servicer nor the Special Servicer shall
consent to any Mortgagor's prepaying its Mortgage Loan, partially or in its
entirety, if the Mortgagor would be prohibited from doing so without such
consent.
(g) The Master Servicer shall not exercise any discretionary right
it has with respect to any Mortgage Loan pursuant to the related Mortgage Note
or Mortgage to apply any amounts maintained as an escrow or reserve to the
principal balance of such Mortgage Loan except in the case of a default
thereunder.
SECTION 3.20 Modifications, Waivers, Amendments and Consents.
(a) The Master Servicer (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 and Excess 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 or waiver of a due-on-encumbrance clause
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), Section 3.08 (with respect to due-on-sale and
due-on-encumbrance clauses), and Section 3.20(f) (with respect to Excess
Interest), 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
(or, in the case of an ARD Loan after its Anticipated Repayment Date, the
related Net Mortgage Rate in effect immediately prior to such Anticipated
Repayment Date)), 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 (A) the date which is two years prior to the Rated
Final Distribution Date, or (B) the date which is 20 years prior to the
expiration date of any related Ground Lease or, in the case of any
Mortgage Loan having as the Cut-Off Date a related Ground Lease that did
not have a term extending 20 years or more beyond the maturity date of
such Mortgage Loan, beyond a date which is 10 years or more beyond the
maturity date of such Mortgage Loan;
(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
Sections 3.08 or 3.20(f) 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
additional or substitute 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) the
Master Servicer or the Special Servicer, as the case may be, have obtained
written confirmation from each Rating Agency that such substitution or
addition 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 Operating
Income being generated by or the use of the related Mortgaged Property, or
(2) there is a corresponding principal paydown of such Mortgage Loan in an
amount at least equal to, or a delivery of substitute collateral with an
appraised value at least equal to, the appraised value of the collateral
to be released, (B) the remaining Mortgaged Property and any substitute
collateral is, in the Master Servicer's or Special Servicer's, as the case
may be, good faith and reasonable judgment, adequate security for the
remaining Mortgage Loan and (C) if the real property collateral that is
being released has an Appraised Value in excess of $3,000,000, or if any
substitution of real property 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 Moody's 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 ten
(10) 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 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,
where applicable, 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).
(f) With respect to any ARD Loan after its Anticipated Repayment
Date, the Master Servicer (or, if the ARD Loan is a Specially Serviced Mortgage
Loan, the Special Servicer) shall be permitted, in its discretion, to waive
(such waiver to be in writing addressed to the related Mortgagor, with a copy to
the Trustee) all or any accrued Excess Interest if, prior to the related
maturity date, the related Mortgagor has requested the right to prepay the
Mortgage Loan in full together with all payments required by the Mortgage Loan
in connection with such prepayment except for all or a portion of accrued Excess
Interest; provided, that the Master Servicer's (or, if the ARD Loan is a
Specially Serviced Mortgaged Loan, the Special Servicer's) determination to
waive the right to such accrued Excess Interest is reasonably likely to produce
a greater payment 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 in effect
immediately prior to the related Anticipated Repayment Date) than a refusal to
waive the right to such Excess Interest; provided further, that such waiver
shall not be effective prior to the tender of such prepayment in full and such
Excess Interest shall remain due if such tender does not occur. The Master
Servicer (or, if the ARD Loan is a Specially Serviced Mortgage Loan, the Special
Servicer) will have no liability to the Trust, the Certificateholders or any
other person so long as such determination is based on such criteria.
(g) The Master Servicer shall not be required to seek the consent of
the Special Servicer or any Certificateholder or obtain any confirmation of the
Certificate ratings from the Rating Agencies in order to approve the following
modifications, waivers or amendments of the Mortgage Loans: (i) waivers of minor
covenant defaults (other than financial covenants), including late financial
statements; (ii) releases of non-material parcels of a Mortgaged Property
(provided that releases as to which the related Mortgage Loan documents
expressly require the mortgagee thereunder to make such releases upon the
satisfaction of certain conditions shall be made as required by the Mortgage
Loan documents); and (iii) grants of easements that do not materially affect the
use or value of a Mortgaged Property or a borrower's ability to make any
payments with respect to the related Mortgage Loan; provided that any such
modification, waiver or amendment (w) would not in any way affect a payment term
of the Certificates, (x) would not constitute a "significant modification" of
such Mortgage Loan pursuant to Treasury Regulations Section 1.860G-2(b) and
would not otherwise constitute an Adverse REMIC Event, (y) agreeing to such
modification, waiver or amendment would be consistent with the Servicing
Standard, and (z) agreeing to such modification, waiver or amendment shall not
violate the terms, provisions or limitations of this Agreement or any other
document contemplated hereby.
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. At its option, although its Sub-Servicing Agreement is terminated,
the related Bank of America Sub-Servicer, without any compensation therefor, may
retain Mortgage Loans on its computer systems while such Mortgage Loans are
Specially Serviced Mortgage Loans, provided that no Bank of America Sub-Servicer
shall take any action with respect thereto so long as such Mortgage Loan is a
Specially Serviced Mortgage Loan. The Master Servicer shall use its best efforts
to comply with the second preceding sentence within five Business Days of the
occurrence of each related Servicing Transfer Event. The Master Servicer shall
deliver to each Class J, Class K, Class L, Class M, Class N, Class O and Class P
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. If the related Bank of America
Sub-Servicer elects not to retain Specially Serviced Mortgage Loans on its
computer systems, then such Sub-Servicer shall return all Mortgage Loan Files to
the Master Servicer.
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, which information shall be provided by the Master Servicer) with
and notices to Mortgagors and similar matters relating to each Specially
Serviced Mortgage Loan and the related Mortgaged Property. Notwithstanding the
foregoing sentence, at its option, the related Bank of America Sub-Servicer,
without compensation therefor, may retain Specially Serviced Mortgage Loans on
its computer systems, provided that such Bank of America Sub-Servicer shall take
action with respect thereto solely at the Master Servicer's and the Special
Servicer's direction.
Also notwithstanding anything herein to the contrary, in connection
with the transfer to the Special Servicer of the servicing, subject to Section
2.03(d) of this Agreement, 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.
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 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, subject to
Section 3.22(g), the Sub-Servicing Agreement: (i) is not inconsistent with this
Agreement; (ii) expressly or effectively provides that if the Master Servicer or
Special Servicer, as the case may be, shall for any reason no longer act in such
capacity hereunder (including, without limitation, by reason of an Event of
Default), any successor to the Master Servicer or the Special Servicer, as the
case may be, hereunder (including the Trustee if the Trustee has become such
successor pursuant to Section 7.02) may thereupon either assume all of the
rights and, except to the extent they arose prior to the date of assumption,
obligations of the Master Servicer or Special Servicer, as the case may be,
under such agreement or, subject to the provisions of Section 3.22(d), terminate
such rights and obligations, in either case without payment of any fee except as
set forth in Section 3.22(d); (iii) in the case of a Sub-Servicing Agreement
entered into by the Master Servicer, expressly or effectively provides that such
agreement shall be suspended with respect to any Mortgage Loan serviced
thereunder at the time such Mortgage Loan becomes a Specially Serviced Mortgage
Loan (but only until such time as such Mortgage Loan becomes a Corrected
Mortgage Loan) and, except as set forth in Section 3.22(d), the Sub-Servicer
shall not receive or accrue an entitlement to any sub-servicing compensation in
respect of a Specially Serviced Mortgage Loan or an REO Loan; (iv) in the case
of a Sub-Servicing Agreement entered into by the Special Servicer, relates only
to Specially Serviced Mortgage Loans or REO Properties and expressly or
effectively provides that such agreement shall terminate with respect to any
such Mortgage Loan that becomes a Corrected Mortgage Loan; (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 (provided, however, that the related
Sub-Servicer shall not be required to furnish the same information to the Master
Servicer more than once) 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 Bank of America
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) subject to Section 3.08(a)(ii), does not authorize
any Sub-Servicer to approve a modification or assumption 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 Sub-Servicer 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 hereunder to make
Advances shall be deemed to have been advanced by the Master Servicer 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, 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 and
such Sub-Servicer as they may agree. For purposes of this Agreement, the Master
Servicer and the Special Servicer each shall be deemed to have received any
payment when a Sub-Servicer retained by it receives such payment. The Master
Servicer and the Special Servicer each shall notify the other such party, the
Trustee and the Depositor in writing promptly of the appointment by it of any
Sub-Servicer, and shall deliver to the Trustee copies of all Sub-Servicing
Agreements, and any amendments thereto and modifications thereof, entered into
by it promptly upon its execution and delivery of such documents; provided that
the foregoing requirements set forth in this sentence shall not apply in the
case of the Sub-Servicing Agreements in effect as of the Original Closing Date
that are listed on Schedule II and Schedule 35 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 each of the other parties
hereto and the Trustee, and then the Trustee shall provide a copy of such notice
to the Directing Certificateholder and, in accordance with Section 8.12(b),
shall, upon request, provide a copy of such notice to each Class J, Class K,
Class L, Class M, Class N, Class O and Class P Certificateholder of any such
default.
(d) With respect to the Sub-Servicing Agreements in effect as of the
Original Closing Date that are listed on Schedule II and Schedule 35 hereto, the
initial Master Servicer hereby agrees that it shall not, in its capacity as
Master Servicer, terminate any Sub-Servicer thereunder without cause. Subject to
Section 3.22(g), 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 such 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. For the avoidance of doubt, the Sub-Servicer under the Midland
Confirmation listed on Schedule 35 may not be terminated without cause by any
Person.
(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.
(g) Midland Loan Services, Inc. ("Midland"), as a Sub-Servicer, has
purchased its Sub-Servicing rights from HVB. As between the Master Servicer (and
its successors hereunder) and Midland, their Sub-Servicing relationship shall be
governed by a Confirmation dated as of September 1, 2000 (the "Midland
Confirmation") between the Master Servicer and Midland, rather than the Amended
and Restated Master Sub-Servicing Agreement for Securitization Transactions by
and among Bank of America, N.A. and the Sub-Servicers listed on Schedule II,
dated as of March 25, 1998, as supplemented by the Confirmation thereto dated as
of September 22, 2000 (the "Confirmation"). In the event of any conflict between
the Confirmation and the Midland Confirmation, the Midland Confirmation shall
control with respect to Midland. Any successor to the Master Servicer shall
assume the Midland Confirmation and shall not terminate Midland under such
Midland Confirmation without cause.
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 or resigned, as applicable, 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 court order 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 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 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 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 U.S. government securities, and provide a copy
of such certification to each Rating Agency.
(d) The Master Servicer shall not approve the form and substance of
any required legal documents in connection with such defeasance unless (i) S&P
and Moody's each 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, (ii) it shall have obtained an Opinion of
Counsel that the defeasance complies with applicable REMIC Provisions; and,
(iii) it shall have obtained an accountant's certification that the defeasance
collateral is sufficient to make payments under the related Mortgage Loan for
the remainder of its term.
(e) With respect to each Mortgage Loan that provides for defeasance,
to the extent permitted by the terms of such Mortgage Loan, or if so requested
by the Rating Agencies, the Master Servicer shall use its best efforts to have
the related Mortgagor (i) designate a Single-Purpose Entity (if the borrower no
longer complies) to assume the Mortgage Loan and own the collateral and (ii)
provide an opinion from counsel that the Trustee has a perfected security
interest in the new collateral.
(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.
(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, or constitutes 2% or more of the then
current principal balance of 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, if consummated, would not
result in the downgrade, qualification (if applicable) or withdrawal of the
rating of any Class of Certificates. 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, 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.
SECTION 3.27 Maintenance of 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.
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 delivered to the
Trustee).
As to a Mortgage Loan which is covered by the Environmental Policy,
upon (A) 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 such Mortgage Loan or Mortgaged Property,
beyond any applicable grace or cure period, and (B) notice or discovery that a
Mortgaged Property has suffered a "pollution condition" ("Pollution Condition")
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 and
Pollution Condition, with a copy to the Special Servicer and to the Directing
Certificateholder, the following information, as applicable: (i) the nature of
any default and Pollution Condition, when each first occurred, when the Master
Servicer or Subservicer became aware of each, and whether such default and
Pollution Condition are 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 Condition, provide an address sufficient to
describe both the location of the affected Mortgaged Property and the location
of the Pollution Condition; (ii) whether the Master Servicer has a good faith
belief that the default will be cured and each Pollution Condition 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. In addition, the Master Servicer and
Sub-Servicers shall review and comply with all terms and conditions of the
Environmental Policy, including giving specific and timely notice thereunder.
Any and all amounts collected by the Master Servicer or the Trustee
or, except with respect to a Mortgage Loan which it has already repurchased
hereunder, any amount collected 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 and which shall be Trust expenses) incurred by the Master
Servicer in connection with this Section 3.27 shall be reimbursable out of the
Certificate Account. Neither the Master Servicer nor the Trustee shall be
required to incur any cost or expense for premiums for such Environmental
Policy; such costs shall be borne by the related Mortgage Loan Seller.
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) herein. Thereafter, such amounts shall be considered to be
held in the REMIC II Distribution Account and distributed on the REMIC II
Uncertificated Regular Interests as set forth in Section 4.01(a)(ii) and on the
Unaffected Certificates as set forth in Section 4.01(b) (to the extent of the
Available Distribution Amount, the "REMIC II Distribution Amount"). Such amounts
distributed on the Class MA-1 and Class MA-2 Uncertificated Interests shall be
considered to be held in the REMIC IIU Distribution Account until distributed to
the Trustee for the benefit of the Class UA-1 and UA-2 Uncertificated Interests
as set forth in Section 4.01(a)(ii) and to the Holders of the Class R-IIU
Certificates as set forth in Section 4.01(a)(v) (to the extent such portion of
the Available Distribution Amount, the "REMIC IIU Distribution Amount"). Such
amounts distributed on the Class UA-1 and Class UA-2 Interests, together with
the amounts distributed on the Class MB, Class MC, Class MD, Class ME, Class MF
and Class MG Uncertificated Interests and on the Class MX Uncertificated
Interest shall be considered to be held in the REMIC III Distribution Account
until distributed to the Holders of the Class A-1, Class A-2, Class B, Class C,
Class D, Class E, Class F, Class G and Class X Certificates and the Class R-III
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").
(ii) The allocation and reimbursement of Realized Losses and
Additional Trust Fund Expenses and timing and amount of principal and
interest 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 LB, Class LC, Class LD, Class LE, Class LF and Class LG
Uncertificated Interests) or the Corresponding Certificates (in the case
of the Class LH, Class LJ, Class LK, Class LL, Class LM, Class LN, Class
LO and Class LP Uncertificated Interest taken together with their related
Components of the Class MX Uncertificated Interest) (2) on each of the
Class MA-1 and Class MA-2 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 IIU Uncertificated Regular Interests, allocated between them as
specified in the definition of "Uncertificated Principal Balance" and (5)
on each of the Class UA-1, Class UA-2, Class MB, Class MC, Class MD, Class
ME, Class MF and Class MG will be identical to such principal amounts,
allocations, reimbursements and timing and amount of distributions on the
Class A-1, Class A-2, Class B, Class C, Class D, Class E, Class F and
Class G Certificates, respectively taken together with their related
Components of the Class X Certificates.
(iii) Any amount that remains in the REMIC I 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 Sections 4.01(a)(i) and 4.01(c)(iv) 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 Sections 4.01(a)(i) and
Section 4.01(c)(iv) and distributions on the Unaffected Certificates
pursuant to Section 4.01(b) and Sections 4.01(c)(i) 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 IIU Distribution
Account on each Distribution Date after distribution of the REMIC IIU
Distribution Amount and Prepayment Premiums allocable to the REMIC IIU
Interests pursuant to Section 4.01(a)(i) and Section 4.01(c)(iv) shall be
distributed to the Holders of the Class R-IIU Certificates (but only to
the extent of the Available Distribution Amount for such Distribution Date
remaining in the REMIC IIU Distribution Account, if any).
(b) 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-1, Class A-2, Class B, Class C, Class D, Class E, Class
F, Class G and Class R-III Certificates, to be made from the REMIC III
Distribution Account, in the case of the REMIC II Certificates, to be made from
the REMIC II Distribution Account):
(i) to distributions of interest to Holders of the Class A-1
Certificates, the Class A-2 Certificates and the Class X Certificates pro
rata, in accordance with the respective amounts of Distributable
Certificate Interest payable in respect of such Classes of Certificates
described in this clause (i), in an amount equal to all Distributable
Certificate Interest in respect of each such Class for such Distribution
Date and, to the extent not previously paid, for all prior Distribution
Dates;
(ii) to distributions of principal, first to the Holders of the
Class A-1 Certificates and second to the Holders of the Class A-2
Certificates in each case, in an amount (not to exceed the Class Principal
Balance of such Class of Certificates outstanding immediately prior to
such Distribution Date) equal to the remaining Principal Distribution
Amount for such Distribution Date;
(iii) 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 the Class Principal Balance of
such Classes of Certificates and for which no reimbursement has previously
been paid;
(iv) to distributions of interest to the Holders of the Class B
Certificates in an amount equal to all Distributable Certificate Interest
in respect of such Class of Certificates for such Distribution Date and,
to the extent not previously paid, for all prior Distribution Dates;
(v) if the Class Principal Balances of the Class A Certificates
have been reduced to zero, to distributions of principal to the Holders of
the Class B Certificates, in an amount (not to exceed the Class Principal
Balance of the Class B Certificates outstanding immediately prior to such
Distribution Date) equal to the entire remaining Principal Distribution
Amount for such Distribution Date;
(vi) to distributions to the Holders of the Class B Certificates,
in an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, that were previously allocated to
the Class Principal Balance of the Class B Certificates and that remain
unreimbursed immediately prior to such Distribution Date;
(vii) to distributions of interest to the Holders of the Class C
Certificates, in an amount equal to all Distributable Certificate Interest
in respect of such Class of Certificates for such Distribution Date and,
to the extent not previously paid, for all prior Distribution Dates;
(viii) if the Class Principal Balances of the Class A and Class B
Certificates have been reduced to zero, to distributions of principal to
the Holders of the Class C Certificates, in an amount (not to exceed the
Class Principal Balance of the Class C Certificates outstanding
immediately prior to such Distribution Date) equal to the entire remaining
Principal Distribution Amount for such Distribution Date;
(ix) to distributions to the Holders of the Class C Certificates,
in an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, that were previously allocated to
the Class Principal Balance of the Class C Certificates and that remain
unreimbursed immediately prior to such Distribution Date;
(x) to distributions of interest to the Holders of the Class D
Certificates, in an amount equal to all Distributable Certificate Interest
in respect of such Class of Certificates for such Distribution Date and,
to the extent not previously paid, for all prior Distribution Dates;
(xi) if the Class Principal Balances of the Class A, Class B and
Class C Certificates have been reduced to zero, to distributions of
principal to the Holders of the Class D Certificates, in an amount (not to
exceed the Class Principal Balance of the Class D Certificates outstanding
immediately prior to such Distribution Date) equal to the entire remaining
Principal Distribution Amount for such Distribution Date;
(xii) to distributions to the Holders of the Class D
Certificates, in an amount equal to, and in reimbursement of, all Realized
Losses and Additional Trust Fund Expenses, if any, that were previously
allocated to the Class Principal Balance of the Class D Certificates and
that remain unreimbursed immediately prior to such Distribution Date;
(xiii) to distributions of interest to the Holders of the Class E
Certificates, in an amount equal to all Distributable Certificate Interest
in respect of such Class of Certificates for such Distribution Date and,
to the extent not previously paid, for all prior Distribution Dates;
(xiv) if the Class Principal Balances of the Class A, Class B,
Class C and Class D Certificates have been reduced to zero, to
distributions of principal to the Holders of the Class E Certificates, in
an amount (not to exceed the Class Principal Balance of the Class E
Certificates outstanding immediately prior to such Distribution Date)
equal to the entire remaining Principal Distribution Amount for such
Distribution Date;
(xv) to distributions to the Holders of the Class E Certificates,
in an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, that were previously allocated to
the Class Principal Balance of the Class E Certificates and that remain
unreimbursed immediately prior to such Distribution Date;
(xvi) to distributions of interest to the Holders of the Class F
Certificates, in an amount equal to all Distributable Certificate Interest
in respect of such Class of Certificates for such Distribution Date and,
to the extent not previously paid, for all prior Distribution Dates;
(xvii) if the Class Principal Balances of the Class A, Class B,
Class C, Class D and Class E Certificates have been reduced to zero, to
distributions of principal to the Holders of the Class F Certificates, in
an amount (not to exceed the Class Principal Balance of the Class F
Certificates outstanding immediately prior to such Distribution Date)
equal to the entire remaining Principal Distribution Amount for such
Distribution Date;
(xviii) to distributions to the Holders of the Class F
Certificates, in an amount equal to, and in reimbursement of, all Realized
Losses and Additional Trust Fund Expenses, if any, that were previously
allocated to the Class Principal Balance of the Class F Certificates and
that remain unreimbursed immediately prior to such Distribution Date;
(xix) to distributions of interest to the Holders of the Class G
Certificates, in an amount equal to all Distributable Certificate Interest
in respect of such Class of Certificates for such Distribution Date and,
to the extent not previously paid, for all prior Distribution Dates;
(xx) if the Class Principal Balances of the Class A, Class B,
Class C, Class D, Class E and Class F Certificates have been reduced to
zero, to distributions of principal to the Holders of the Class G
Certificates, in an amount (not to exceed the Class Principal Balance of
the Class G Certificates outstanding immediately prior to such
Distribution Date) equal to the entire remaining Principal Distribution
Amount for such Distribution Date;
(xxi) to distributions to the Holders of the Class G
Certificates, in an amount equal to, and in reimbursement of, all Realized
Losses and Additional Trust Fund Expenses, if any, that were previously
allocated to the Class Principal Balance of the Class G Certificates and
that remain unreimbursed immediately prior to such Distribution Date;
(xxii) to distributions of interest to the Holders of the Class H
Certificates, in an amount equal to all Distributable Certificate Interest
in respect of such Class of Certificates for such Distribution Date and,
to the extent not previously paid, for all prior Distribution Dates;
(xxiii) if the Class Principal Balances of the Class A, Class B,
Class C, Class D, Class E, Class F and Class G Certificates have been
reduced to zero, to distributions of principal to the Holders of the Class
H Certificates, in an amount (not to exceed the Class Principal Balance of
the Class H Certificates outstanding immediately prior to such
Distribution Date) equal to the entire remaining Principal Distribution
Amount for such Distribution Date;
(xxiv) to distributions to the Holders of the Class H
Certificates, in an amount equal to, and in reimbursement of, all Realized
Losses and Additional Trust Fund Expenses, if any, that were previously
allocated to the Class Principal Balance of the Class H Certificates and
that remain unreimbursed immediately prior to such Distribution Date;
(xxv) to distributions of interest to the Holders of the Class J
Certificates, in an amount equal to all Distributable Certificate Interest
in respect of such Class of Certificates for such Distribution Date and,
to the extent not previously paid, for all prior Distribution Dates;
(xxvi) if the Class Principal Balances of the Class A, Class B,
Class C, Class D, Class E, Class F Class G Certificates 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 Balances of the Class J Certificates outstanding
immediately prior to such Distribution Date) equal to the entire remaining
Principal Distribution Amount for such Distribution Date;
(xxvii) to distributions to the Holders of the Class J
Certificates, in an amount equal to, and in reimbursement of, all Realized
Losses and Additional Trust Fund Expenses, if any, that were previously
allocated to the Class Principal Balances of the Class J Certificates and
that remain unreimbursed immediately prior to such Distribution Date;
(xxviii) to distributions of interest to the Holders of the Class
K Certificates, in an amount equal to all Distributable Certificate
Interest in respect of such Class of Certificates for such Distribution
Date and, to the extent not previously paid, for all prior Distribution
Dates;
(xxix) if the Class Principal Balances of the Class A, Class B,
Class C, Class D, Class E, Class F, Class G, Class H and Class J
Certificates have been reduced to zero, to distributions of principal to
the Holders of the Class K Certificates, in an amount (not to exceed the
Class Principal Balance of the Class K Certificates outstanding
immediately prior to such Distribution Date) equal to the entire remaining
Principal Distribution Amount for such Distribution Date;
(xxx) to distributions to the Holders of the Class K
Certificates, in an amount equal to, and in reimbursement of, all Realized
Losses and Additional Trust Fund Expenses, if any, that were previously
allocated to the Class Principal Balance of the Class K Certificates and
that remain unreimbursed immediately prior to such Distribution Date;
(xxxi) to distributions of interest to the Holders of the Class L
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;
(xxxii) if the Class Principal Balances of the Class A, Class B,
Class C, Class D, Class E, Class F, Class G, Class H, Class J and Class K
Certificates have been reduced to zero, to distributions of principal to
the Holders of the Class L Certificates, in an amount (not to exceed the
Class Principal Balance of the Class L Certificates outstanding
immediately prior to such Distribution Date) equal to the entire remaining
Principal Distribution Amount for such Distribution Date;
(xxxiii) to distributions to the Holders of the Class L
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 L Certificates and
that remain unreimbursed immediately prior to such Distribution Date;
(xxxiv) to distributions of interest to the Holders of the Class
M 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;
(xxxv) if the Class Principal Balances of the Class A, Class B,
Class C, Class D, Class E, Class F, Class G, Class H, Class J, Class K and
Class L Certificates have been reduced to zero, to distributions of
principal to the Holders of the Class M Certificates, in an amount (not to
exceed the Class Principal Balance of the Class M Certificates outstanding
immediately prior to such Distribution Date) equal to the entire remaining
Principal Distribution Amount for such Distribution Date;
(xxxvi) to distributions to the Holders of the Class M
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 M Certificates and
that remain unreimbursed immediately prior to such Distribution Date;
(xxxvii) to distributions of interest to the Holders of the Class
N 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;
(xxxviii) if the Class Principal Balances of the Class A, Class
B, Class C, Class D, Class E, Class F, Class G, Class H, Class J, Class K,
Class L and Class M Certificates have been reduced to zero, to
distributions of principal to the Holders of the Class N Certificates, in
an amount (not to exceed the Class Principal Balance of the Class N
Certificates outstanding immediately prior to such Distribution Date)
equal to the entire remaining Principal Distribution Amount for such
Distribution Date;
(xxxix) to distributions to the Holders of the Class N
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 N Certificates and
that remain unreimbursed immediately prior to such Distribution Date;
(xl) to distributions of interest to the Holders of the Class O
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;
(xli) if the Class Principal Balances of the Class A, Class B,
Class C, Class D, Class E, Class F, Class G, Class H, Class J, Class K,
Class L, Class M and Class N Certificates have been reduced to zero, to
distributions of principal to the Holders of the Class O Certificates, in
an amount (not to exceed the Class Principal Balance of the Class O
Certificates outstanding immediately prior to such Distribution Date)
equal to the entire remaining Principal Distribution Amount for such
Distribution Date;
(xlii) to distributions to the Holders of the Class O
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 O Certificates and
that remain unreimbursed immediately prior to such Distribution Date;
(xliii) to distributions of interest to the Holders of the Class
P 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;
(xliv) if the Class Principal Balances of the Class A, Class B,
Class C, Class D, Class E, Class F, Class G, Class H, Class J, Class K,
Class L, Class M, Class N and Class O Certificates have been reduced to
zero, to distributions of principal to the Holders of the Class P
Certificates, in an amount (not to exceed the Class Principal Balance of
the Class P Certificates outstanding immediately prior to such
Distribution Date) equal to the entire remaining Principal Distribution
Amount for such Distribution Date;
(xlv) to distributions to the Holders of the Class P
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 P Certificates and
that remain unreimbursed immediately prior to such Distribution Date; and
(xlvi) to distributions to the Holders of the Class R-III
Certificates, in an amount equal to the balance, if any, of the Available
Distribution Amount for such Distribution Date remaining after the
distributions to be made on such Distribution Date pursuant to clauses (i)
through (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 (ii)
and (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), (xxx), (xxiii), (xxxvi), (xxxix), (xlii) and (xlvi) above with respect
to any Class of Sequential Pay Certificates, will be so made to the Holders
thereof, subject to available funds, up to an amount equal to the entire then
outstanding Class Principal Balance of such Class of Certificates, and without
regard to the Principal Distribution Amount for such date. References to
"remaining Principal Distribution Amount" in clause (ii) above, in connection
with payments of principal to be made to the Holders of any Class of Class A
Certificates, shall be to the Principal Distribution Amount for such
Distribution Date, net of any distributions of principal made in respect thereof
to the Holders of each other Class of Class A Certificates, if any, that
pursuant to clause (ii) above has an earlier right to payment with respect
thereto. References to "remaining Principal Distribution Amount" in any of
clauses (vi), (ix), (xii), (xv), (xviii), (xxi), (xxiv), (xxvii), (xxx),
(xxxiii), (xxxvi), (xxxix), (xlii) and (xlvi) above, in connection with the
payments of principal to be made to the Holders of any Class of Sequential Pay
Certificates, shall be to the Principal Distribution Amount for such
Distribution Date, net of any payments of principal made in respect thereof to
the Holders of each other Class of Sequential Pay Certificates that has a higher
Payment Priority.
(c) (i) On each Distribution Date, Prepayment Premiums collected
during the related Collection Period will be distributed by the Trustee to the
following Classes of Certificates: to the Class A-1, Class A-2, Class B, Class C
Class D, Class E, Class F, Class G, and Class H 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-1, Class A-2, Class B,
Class C, Class D, Class E, Class F, Class G, Class H, Class J, Class K, Class L,
Class M, Class N, Class O and Class P 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 collected on such principal prepayments during the related
Collection Period. Any Prepayment Premiums collected during the related
Collection Period remaining after such distributions will be distributed to the
holders of the Class X Certificates.
(ii) 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.
(iii) No Prepayment Premiums or yield maintenance charges will be
distributed to the holders of the Class J, Class K, Class L, Class M,
Class N, Class O or Class P Certificates. After the Certificate Principal
Balances of the Class A-1, Class A-2, Class B, Class C, Class D, Class E,
Class F, Class G and Class H Certificates have been reduced to zero, all
Prepayment Premiums and yield maintenance charges with respect to the
Mortgage Loans shall be distributed to the holders of the Class X
Certificates.
(iv) All distributions of Prepayment Premiums made in respect of
the respective Classes of Regular Certificates on each Distribution Date
pursuant to Section 4.01(c)(i) shall first be 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)(i) above. The amount of Prepayment Premiums distributable
(A) on the Class A-1, Class A-2, Class B, Class C, Class D, Class E, Class
F, Class G and Class H Certificates shall be distributed, (1) from REMIC
II to REMIC IIU in respect of the Class MA-1 and Class MA-2 Uncertificated
Interests, (2) from REMIC II to REMIC III in respect of the Class MB,
Class MC, Class MD, Class ME, Class MF, Class MG and Class MH
Uncertificated Interests, (3) from REMIC IIU to REMIC III in respect of
the Class UA-1 and Class UA-2 Uncertificated Interests, in each case based
on the amount distributable on the Corresponding Certificates. The amount
of Prepayment Premiums distributable on the Class X Certificates shall be
deemed to be distributed from REMIC II to REMIC IIU in respect of the
Class MA-1 and Class MA-2 Uncertificated Interests and from REMIC II to
REMIC III in respect of the remaining REMIC II Uncertificated Regular
Interests, pro rata, and the amounts so allocated in respect of the Class
MA-1 and Class MA-2 Uncertificated Interests shall be deemed to be
distributed from REMIC IIU to REMIC III in respect of the REMIC IIU
Regular Interests, pro rata, in each such case based upon the amount of
interest distributed thereon for such Distribution Date pursuant to
Section 4.01(a)(ii) it being understood that the amount so allocated in
respect of the Class X Certificates shall be equal to the amount of
Prepayment Premiums remaining, after allocations to the Class A-1, Class
A-2, Class B, Class C, Class D, Class E, Class F, Class G and Class H
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).
(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(h) shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation in order to
receive the final distribution with respect thereto. If within one year after
the second notice all such Certificates shall not have been surrendered for
cancellation, the Trustee, directly or through an agent, shall take such steps
to contact the remaining non-tendering Certificateholders concerning the
surrender of their Certificates as it shall deem appropriate. The costs and
expenses of holding such funds in trust and of contacting such
Certificateholders following the first anniversary of the delivery of such
second notice to the non-tendering Certificateholders shall be paid out of such
funds. No interest shall accrue or be payable to any Certificateholder on any
amount held in trust hereunder by the Trustee as a result of such
Certificateholder's failure to surrender its Certificate(s) for final payment
thereof in accordance with this Section 4.01(h). If all of the Certificates
shall not have been surrendered for cancellation by the second anniversary of
the delivery of the second notice, the Trustee shall distribute to the Class
R-II Certificateholders all unclaimed funds and other assets which remain
subject hereto.
(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.
(i) On each Distribution Date, any Excess Interest received during
the related Collection Period with respect to the Mortgage Loans shall be
distributed to the holders of the Class V Certificates.
(j) All payments made on HVB Loan No. 510238 and HVB Loan No. 540310
or any related subsequently acquired REO Property (other than amounts
distributable to the Loan REMIC Residual Interests in accordance with the Loan
REMIC Declarations) shall be deemed to be paid to REMIC I before payments are
made to the holder of the REMIC I Regular Interests, and shall be treated as
principal, interest, or Prepayment Premiums, as the case may be, based on these
characterizations with respect to HVB Loan No. 510238 or HVB Loan No. 540310 (or
REO Property), except where expressly noted and, in addition, any payment of
principal on or reduction in the Stated Principal Balance of HVB Loan No. 510238
or HVB Loan No. 540310 shall reduce the principal balance of the related Loan
REMIC Regular Interest. Any payments on or with respect to HVB Loan 510238 or
HVB Loan. 540310 in excess of the principal, interest and Prepayment Premiums
distributable on the Loan REMIC Regular Interests shall be distributable to the
Class R-I Certificate in respect of amounts distributed on the Loan REMIC
Residual Interests. Servicing Fees with respect to HVB Loan No. 510238 and HVB
Loan No. 540310 shall be paid by REMIC I in respect of the related Loan REMIC
Regular Interests, and all other servicing compensation with respect to HVB Loan
No. 540310 and HVB Loan No. 510238 payable to the Master Servicer or the Special
Servicer shall be payable by the Loan REMICs, except as provided in Section
3.05(a).
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 REMIC II
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 Determination 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 Determination 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 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, and an itemization of all such
Additional Trust Fund Expenses;
(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 and cumulative outstanding Advances;
(xx) current Prepayments;
(xxi) the number and aggregate principal balance of Mortgage
Loans as to which foreclosure proceedings have been commenced as to the
related Mortgaged Property; 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 Operating Income for
the respective Mortgaged Properties and a Debt Service Coverage Ratio calculated
on the basis thereof).
In addition, the Trustee shall provide or make available, either in
electronic format or by first-class mail, to such Certificateholders and
Certificate Owners and to the Rating Agencies, at the same time that the
Distribution Date Statement is delivered thereto, each (i) Delinquent Loan
Status Report, (ii) REO Status Report, (iii) Historical Loan Modification
Report, (iv) Historical Liquidation Report, (v) Comparative Financial Status
Report, (vi) Servicer Watch List Report (vii) CMSA Loan Setup File, (viii) CMSA
Loan Periodic Update File, (ix) CMSA Property File, and (x) CMSA Financial File
(such six supplemental reports and four data files, the "Servicer Reports") that
has been received by the Trustee since the prior Distribution Date.
Additionally, the Trustee shall also be required to provide or make available,
either in electronic format or by first-class mail, the Servicer Reports to any
potential investor in the Certificates who requests such reports in writing.
Within a reasonable period of time after the end of each calendar
year, the Trustee shall furnish to each Person who at any time during the
calendar year was a Holder of a Regular Certificate a statement containing the
information as to the applicable Class set forth in clauses (i) and (ii) above
of the description of Distribution Date Statement, aggregated for such calendar
year or applicable portion thereof during which such Person was a
Certificateholder, together with such other information as the Trustee
determines to be necessary to enable Certificateholders to prepare their tax
returns for such calendar year. Such obligation of the Trustee shall be deemed
to have been satisfied to the extent that substantially comparable information
shall be provided by the Trustee pursuant to any requirements of the Code as
from time to time are in force.
Upon filing with the IRS, the REMIC Administrator shall furnish to
the Holders of the Class R-I, Class R-II, Class R-IIU and Class R-III
Certificates the Form 1066 and shall furnish their respective Schedules Q
thereto at the times required by the Code or the IRS, and shall provide from
time to time such information and computations with respect to the entries on
such forms as any Holder of the Class R-I, Class R-II, Class R-IIU and Class
R-III Certificates may reasonably request.
The Trustee will make available each month, to any interested party,
the Distribution Date Statement (and any additional files containing the same
information in an alternative format) via the Trustee's Website. In addition,
the Trustee will make available to any interested party each month the Servicer
Reports, the CSMA Loan Setup File and the CSMA Loan Periodic Update File on the
Trustee's Website. The Distribution Date Statement will be available on the
Trustee's fax-on-demand service, which may be accessed by calling (301)
815-6610. In addition, the Trustee will make available, as a convenience for
interested parties (and not in furtherance of the distribution of the Base
Prospectus and the Prospectus Supplement under the securities laws), this
Agreement, the Base Prospectus and the Prospectus Supplement via the Trustee's
Website. For assistance with the above-referenced services, interested parties
may call (301) 815-6600. The Trustee will make no representations or warranties
as to the accuracy or completeness of such documents and will assume no
responsibility therefor.
In connection with providing access to the Trustee's Website, the
Trustee may require registration and the acceptance of the disclaimer. The
Trustee shall not be liable for the dissemination of information in accordance
herewith.
(b) The Master Servicer shall deliver or cause to be delivered to
the Trustee, the Directing Certificateholder, the Special Servicer and each
Rating Agency (which delivery to the Special Servicer, the Directing
Certificateholder and each Rating Agency may be accomplished by making such
information available on the Master Servicer's Internet Website), on a
computer-readable medium, in form reasonably acceptable to the Trustee,
including, without limitation, on a loan-by-loan basis, (A) at or before 1:00
p.m. (New York City time) on the first Business Day prior to the related
Distribution Date beginning in December, 2000, the Servicer Reports and the
Special Servicer Loan Status Report most recently prepared by the Master
Servicer (excluding the CMSA Loan Periodic Update File) (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 as provided by the Special Servicer), and
(B) at or before 1:00 p.m. (New York City time) on the second Business Day prior
to the related Distribution Date (the "Master Servicer Reporting Date"),
beginning in December, 2000, the CMSA Loan Periodic Update File setting forth
the information specified in clauses (i) through (xvi) below (the items
specified in clause (xiii) below to be reported once per calendar quarter, and
the amounts and allocations of payments, collections, fees and expenses with
respect to Specially Serviced Mortgage Loans and REO Properties to be based upon
the report to be delivered by the Special Servicer to the Master Servicer on the
fourth (4th) Business Day prior to the Distribution Date, as required by Section
4.02(c) below):
(i) the aggregate amount that is to be transferred from the
Certificate Account to the Distribution Account on the related Master
Servicer Remittance Date that is allocable to principal on or in respect
of the Mortgage Loans and any REO Loans, separately identifying the
aggregate amount of any Principal Prepayments included therein, and (if
different) the Principal Distribution Amount for the immediately
succeeding Distribution Date;
(ii) the aggregate amount that is to be transferred from the
Certificate Account to the Distribution Account on the related Master
Servicer Remittance Date that is allocable to (A) interest on or in
respect of the Mortgage Loans and any REO Loans and (B) Prepayment
Premiums;
(iii) the aggregate amount of any P&I Advances (specifying the
principal and interest portions thereof separately) to be made pursuant to
Section 4.03 of this Agreement that were made in respect of the
immediately preceding Distribution Date;
(iv) the amount of the Master Servicing Fees, Special Servicing
Fees, Workout Fees, Liquidation Fees and other servicing compensation with
respect to the Mortgage Pool for the Collection Period ending on such
Determination Date, specifying the items and amounts of such other
servicing compensation payable to the Master Servicer, the Special
Servicer and any Sub-Servicers retained by each;
(v) the number and aggregate unpaid principal balance as of the
close of business on the last day of the most recently ended calendar
month of Mortgage Loans in the Mortgage Pool (A) remaining outstanding,
(B) delinquent 30-59 days, (C) delinquent 60-89 days, (D) delinquent 90
days or more but not in foreclosure and (E) in foreclosure; and the number
and aggregate unpaid principal balance as of the close of business on such
Determination Date of Mortgage Loans in the Mortgage Pool (x) as to which
the related Mortgaged Property has become REO Property during the
Collection Period ending on such Determination Date, (y) as to which the
related Mortgaged Property was REO Property as of the end of such
Collection Period and (z) the terms of which have been modified during
such Collection Period pursuant to this Agreement;
(vi) the loan number and the unpaid principal balance as of the
close of business on such Determination Date of each Specially Serviced
Mortgage Loan and each other Defaulted Mortgage Loan;
(vii) with respect to any REO Property that was included in the
Trust Fund as of the close of business on such Determination Date, the
loan number of the related Mortgage Loan, the appraised 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);
(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; and
(xvi) any additional information as may be agreed upon between
the Master Servicer and the Trustee; provided, however, that no
Sub-Servicer's obligations may be increased without its consent.
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 such calendar month, 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, 2001, but excluding each first calendar quarter
thereafter, within 105 days (or 180 days, in the case of annual year end
operating information, commencing with year end 2000) of receipt by the Master
Servicer, as to non-Specially Serviced Mortgage Loans, or within 30 days after
receipt by the Special Servicer, as to Specially Serviced Mortgage Loans, of any
annual, quarterly or other periodic operating statements or rent rolls with
respect to any Mortgaged Property or REO Property, the Master Servicer (or the
Special Servicer, as applicable), shall, upon the request of the Trustee,
deliver to the Trustee copies (or imaged copies) of such operating statements
and rent rolls. Based upon such operating statements or related rent rolls, the
Master Servicer (based upon operating statements, rent rolls, written reports
and data fields collected or prepared by the Special Servicer pursuant to
Section 3.12(b) and furnished to the Master Servicer by the Special Servicer in
the case of the Specially Serviced Mortgage Loans), shall prepare (or, if
previously prepared, update, inclusive of year-to-date data) a written analysis
of the operations of the Mortgaged Property or REO Property, by completing an
Operating Statement Analysis Report, together with an NOI Adjustment Worksheet
for annual year-end operating statements and related rent rolls. All Operating
Statement Analysis Reports and NOI Adjustment Worksheets shall be maintained by
the Master Servicer with respect to each Mortgaged Property and REO Property.
The Master Servicer shall deliver copies (or imaged copies) thereof, upon
request, to the Trustee, the Rating Agencies, the Directing Certificateholder
and 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 statements or related
rent rolls. Each Operating Statement Analysis Report shall be substantially in
the form of Exhibit I attached hereto and each NOI Adjustment Worksheet shall be
substantially in the form of Exhibit K attached hereto. Each Operating Statement
Analysis Report and NOI Adjustment Worksheet shall be prepared using normalized
year-to-date CMSA methodology as in effect from time to time.
The Special Servicer, on the fourth (4th) Business Day (for delivery
on such date) prior to each Distribution Date, shall forward to the Master
Servicer all information, data or reports collected or delivered by the Special
Servicer which the Master Servicer is required to include in its preparation of
the Servicer Reports. 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.
No later than 1:00 p.m., New York City time, on the Master Servicer
Remittance Date, beginning in January, 2001, 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"), substantially in the form of Exhibit J attached hereto.
For this purpose, Mortgage Loans that are in jeopardy of becoming Specially
Serviced Mortgage Loans shall include, without limitation: (i) Mortgage Loans
having a normalized Debt Service Coverage Ratio that is less than 1.05x, (ii)
Mortgage Loans as to which any required inspection of the related Mortgaged
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 without any expansion of its
duties under this Agreement by reason hereof that (A) any tenant (or tenants
collectively) 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 60 days delinquent in payment,
(v) Mortgage Loans that are within 6 months of maturity, (vi) Mortgage Loans
that have been delinquent in the payment of principal and/or interest twice in
the immediately preceding 12 month period, (vii) Mortgage Loans as to which
there is a delinquency in the payment of real estate taxes, ground rents,
assessments or similar items, or escrows for such items, and (viii) Mortgage
Loans as to which insurance on the related Mortgaged Property has lapsed.
The Master Servicer shall use its reasonable efforts to notify the
Rating Agencies in a timely manner of any change in the identity of either the
two largest tenants of any retail Mortgaged Property and any casualty at or
condemnation proceeding with respect to any Mortgaged Property, subject to its
becoming aware of such change or event.
To the extent the statements, reports and information (or portions
thereof) to be delivered by the Master Servicer under this Section 4.02(b) are
derived from underlying information to be delivered to the Master Servicer by
the Special Servicer, the Master Servicer shall not be liable for any failure to
deliver such statement, report or information (or portion thereof) on the
prescribed dates, to the extent such failure is caused by the Special Servicer's
failure to deliver such underlying information in a timely manner. Absent actual
knowledge to the contrary, the Master Servicer may conclusively rely on any such
information forwarded to it by the Special Servicer and shall have no obligation
to verify the same.
(c) At or before 1:00 p.m. (New York City time) one (1) 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 produce the Servicer Reports 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) 237-2040 (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) 237-2010 (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) 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 Business
Day before the Master Servicer Remittance Date; 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; and provided, further, that the Master Servicer shall not be
required to advance Excess Interest with respect to ARD Loans.
(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 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 out of general collections. The Trustee shall be
entitled to rely on any determination of nonrecoverability that may have been
made by the Master 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 in the case of Specially Serviced Mortgage Loans.
(d) As and to the extent permitted by Section 3.05(a), the Master
Servicer and the Trustee shall each be entitled to receive interest at the
Reimbursement Rate in effect from time to time, accrued on the amount of each
P&I Advance made thereby (out of its own funds), for so long as such P&I Advance
is outstanding (or, in the case of Advance Interest payable to the Master
Servicer, if earlier, until the Late Collection of the delinquent principal
and/or interest in respect of which such P&I Advance was made has been received
by the Master Servicer). 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 P, Class O, Class N, Class
M, Class L, 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 and Class A-2 Certificates pursuant to Section
4.04(a) with respect to such Distribution Date shall reduce the Uncertificated
Principal Balances of the Class UA-1 and Class UA-2 Uncertificated Interests as
a write-off and shall be allocated pro rata between such REMIC IIU Regular
Interests; (ii) any Realized Losses allocated to the Class UA-1, and Class UA-2
Uncertificated Interests pursuant to clause (i) 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 such Uncertificated Interests in accordance with
their Uncertificated Principal Balances; (iii) any Realized Losses allocated to
the Class B, Class C, Class D, Class E, Class F and Class G Certificates
pursuant to Section 4.04(a) with respect to such Distribution Date shall reduce
the Uncertificated Principal Balances of the Class MB, Class MC, Class MD, Class
ME, Class MF and Class MG Uncertificated Interests, respectively, as a
write-off; (iv) 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 LB,
Class LC, Class LD, Class LE, Class LF, Class LG, Class LH, Class LJ, Class LK,
Class LL, Class LM, Class LN, Class LO and Class LP Uncertificated Interests in
the same priority as its Class of Corresponding REMIC II Uncertificated Regular
Interests pursuant to Clauses (ii) and (iii) 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, in the case of HVB Loan No. 510238
and HVB Loan No. 540310, the Loan REMIC Regular Interests, 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 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 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.
SECTION 4.06 The Excess Interest Distribution Account.
The Trustee for the benefit of the Certificateholders, shall
establish and maintain the Excess Interest Distribution Account in trust for the
benefit of the Certificateholders. The Excess Interest Distribution 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. Prior to the applicable Distribution Date, the
Master Servicer shall remit to the Trustee for deposit in the Excess Interest
Distribution Account an amount equal to the Excess Interest received during the
applicable Collection Period. Following the distribution of Excess Interest to
Class V Certificateholders on the first Distribution Date after which there are
no longer any Mortgage Loans outstanding which pursuant to their terms could pay
Excess Interest, the Trustee shall terminate the Excess Interest Distribution
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-22; provided that any of
the Certificates may be issued with appropriate insertions, omissions,
substitutions and variations, and may have imprinted or otherwise reproduced
thereon such legend or legends, not inconsistent with the provisions of this
Agreement, as may be required to comply with any law or with rules or
regulations pursuant thereto, or with the rules of any securities market in
which the Certificates are admitted to trading, or to conform to general usage.
The Certificates will be issuable in registered form only; provided, however,
that in accordance with Section 5.03 beneficial ownership interests in the REMIC
Regular Certificates shall initially be held and transferred through the
book-entry facilities of the Depository. The Regular Certificates will be
issuable in denominations corresponding to initial Certificate Principal
Balances or Certificate Notional Amounts, as the case may be, as of the Original
Closing Date of not less than $100,000 (or, with respect to the Class A
Certificates, $10,000 and, with respect to the Class X Certificates, $1,000,000)
and any whole dollar denomination in excess thereof; provided, however, that a
single Certificate of each Class thereof may be issued in a different
denomination. Each Class of Residual Certificates and Class V 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 shall, in any
event, be dated the Original Closing Date.
(c) The Class V, Class R-I, Class R-II, Class R-IIU and R-III
Certificates shall be initially issued as Definitive Certificates. 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 Wells Fargo Center, Sixth and
Marquette, MAC# N9303-121, 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 Certificateholders representing more than 25% of any Class of
Certificates (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 Master 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 relating to the Mortgage Loans that are in its possession and 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
Master 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 Master 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 Class V Certificate or
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) except for Class V and the Residual Certificates (which
may not be transferred to a Holder who does not make the representation
described in clause (i)(a)), if such Certificate is presented for registration
in the name of a purchaser or transferee that is any of the foregoing, any
Opinion of Counsel or other certification as the Certificate Registrar may
reasonably require and 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 Underwriters 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 Opinions of Counsel or other certification described in
clause (ii) above. The costs of any of the foregoing representation letters,
certifications or Opinions of Counsel shall not be borne by any of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the
Underwriters, the Certificate Registrar and the Trust Fund. To the extent the
purchase or holding of a Subordinate Certificate would be restricted by ERISA,
the Code or Similar Law, 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 reasonably 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, 2001, 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 Regular Certificates shall initially be issued as one or
more Certificates registered in the name of the Depository or its nominee and,
except as provided in subsection (c) below, transfer of such Certificates may
not be registered by the Certificate Registrar unless such transfer is to a
successor Depository that agrees to hold such Certificates for the respective
Certificate Owners with Ownership Interests therein. Such Certificate Owners
shall hold and transfer their respective Ownership Interests in and to such
Certificates through the book-entry facilities of the Depository and, except as
provided in subsection (c) below, shall not be entitled to 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 Sellers, 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 Sellers, 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 Sellers, 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.
For purposes of determining the identity of the holders of the Class
J, Class K, Class L, Class M, Class N, Class O and Class P 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. With
respect to the Class A, Class X, Class B, Class C, Class D, Class E, Class F,
Class G, Class H, Class V, Class R-I, Class R-II, Class R-IIU and Class R-III
Certificates, from time to time, upon the request of the Master Servicer, the
Trustee shall provide the Master Servicer with a list of the Certificateholders
recorded in the Certificate Register.
ARTICLE VI
THE DEPOSITOR, THE MORTGAGE LOAN SELLERS, THE MASTER SERVICER,
THE SPECIAL SERVICER AND THE REMIC ADMINISTRATOR
SECTION 6.01 Liability of the Depositor, the Mortgage Loan Sellers,
the Master Servicer, the Special Servicer and the
REMIC Administrator.
The Depositor, the Mortgage Loan Sellers, 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 Sellers, the Master
Servicer, the Special Servicer and the REMIC Administrator herein.
SECTION 6.02 Merger, Consolidation or Conversion of the Depositor,
the Mortgage Loan Sellers, the Master Servicer, the
Special Servicer or the REMIC Administrator.
Subject to the following paragraph, the Depositor, the Mortgage Loan
Sellers, 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 Sellers, 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 Sellers, 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
Sellers, the Master Servicer, the Special Servicer or the REMIC Administrator,
shall be the successor of the Depositor, the Mortgage Loan Sellers, 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 Sellers, 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).
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, including reasonable attorneys' fees, expenses of
counsel and expenses of litigation, incurred in connection with any claims or
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) or; (ii) 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
3.11(a) and 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 (A) to deposit into the
Certificate Account any amount required to be so deposited under this
Agreement which continues unremedied for two (2) Business Days following
the date on which such deposit was first required to be made, but in no
event later than one (1) day before the related Distribution Date, or (B)
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 direct the
Master Servicer to make any Servicing Advance (including any Emergency
Advance) required to be made by the Master Servicer at its direction
pursuant to this Agreement, which failure continues unremedied for a
period of two (2) Business Days following the date on which notice has
been given to the Special Servicer by the Trustee as provided in Section
3.11(e); or
(vi) any failure on the part of the Master Servicer or the
Special Servicer duly to observe or perform in any material respect any
other of the covenants or agreements thereof contained in this Agreement,
which failure continues unremedied for a period of 30 days after the date
on which written notice of such failure, requiring the same to be
remedied, shall have been given to the Master Servicer or the Special
Servicer, as the case may be, by any other party hereto, or to the Master
Servicer or the Special Servicer, as the case may be, with a copy to each
other party hereto, by the Holders of Certificates entitled to at least
25% of the Voting Rights; or
(vii) any failure on the part of the REMIC Administrator duly to
observe or perform in any material respect any of the covenants or
agreements thereof contained in this Agreement, which failure continues
unremedied for a period of 30 days after the date on which written notice
of such failure, requiring the same to be remedied, shall have been given
to the REMIC Administrator by any other party hereto, or to the REMIC
Administrator, with a copy to each other party hereto, by the Holders of
Certificates entitled to at least 25% of the Voting Rights; or
(viii) any breach on the part of the Master Servicer, the Special
Servicer or the REMIC Administrator of any representation or warranty
thereof contained in this Agreement which materially and adversely affects
the interests of any Class of Certificateholders and which continues
unremedied for a period of 30 days after the date on which notice of such
breach, requiring the same to be remedied, shall have been given to the
Master Servicer, the Special Servicer or the REMIC Administrator, as the
case may be, by any other party hereto, or to the Master Servicer, the
Special Servicer or the REMIC Administrator, as the case may be, with a
copy to each other party hereto, by the Holders of Certificates entitled
to at least 25% of the Voting Rights; or
(ix) a decree or order of a court or agency or supervisory
authority having jurisdiction in the premises in an involuntary case under
any present or future federal or state bankruptcy, insolvency or similar
law for the appointment of a conservator, receiver, liquidator, trustee or
similar official in any bankruptcy, insolvency, readjustment of debt,
marshalling of assets and liabilities or similar proceedings, or for the
winding-up or liquidation of its affairs, shall have been entered against
the Master Servicer, the Special Servicer or the REMIC Administrator and
such decree or order shall have remained in force undischarged or unstayed
for a period of 60 days; or
(x) the Master Servicer, the Special Servicer or the REMIC
Administrator shall consent to the appointment of a conservator, receiver,
liquidator, trustee or similar official in any bankruptcy, insolvency,
readjustment of debt, marshalling of assets and liabilities or similar
proceedings of or relating to it or of or relating to all or substantially
all of its property; or
(xi) the Master Servicer, the Special Servicer or the REMIC
Administrator shall admit in writing its inability to pay its debts
generally as they become due, file a petition to take advantage of any
applicable bankruptcy, insolvency or reorganization statute, make an
assignment for the benefit of its creditors, voluntarily suspend payment
of its obligations, or take any corporate action in furtherance of the
foregoing; or
(xii) Moody's places the ratings from any Class of Certificates
on a "watch" status in contemplation of a ratings downgrade or withdrawal,
citing servicing concerns of the Master Servicer or the Special Servicer,
as applicable, as the sole or contributory factor in such rating action
and the Master Servicer or the Special Servicer, as applicable, shall not
have resolved all such matters to the satisfaction of Moody's within sixty
(60) days (or such longer time period as may be agreed in writing by
Moody's) after such placement on "watch" status; or
(xiii) either the Master Servicer is removed from S&P's approved
master servicer list or the Special Servicer is removed from S&P's
approved special servicer list and the ratings of any of the Certificates
rated by S&P are downgraded, qualified (including, without limitation, the
placement of such Certificates on "negative credit watch") or withdrawn in
connection with such removal.
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 (xii) 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 clause (xi) 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. With respect to each of the Event of Defaults listed above
as clauses (xii) and (xiii), the Trustee shall provide written notice of such
Event of Default to each Certificateholder and request written direction of such
Certificateholders whether they desire to terminate the Defaulting Party; if no
such direction is received from at least 51% of the Voting Rights within 15
Business Days after delivery of such notice by the Trustee, and the Trustee has
not elected pursuant to the preceding sentence to terminate the Defaulting
Party, the Defaulting Party will not be terminated by reason of such Event of
Default. 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) or Section 3.23, 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 (i) survive
any resignation or removal of the Trustee and appointment of a successor trustee
and (ii) extend to any other role which the Trustee may assume hereunder,
including without limitation REMIC Administrator, Custodian and/or Certificate
Registrar.
SECTION 8.06 Eligibility Requirements for Trustee.
The Trustee hereunder shall at all times be a corporation, a trust
company, a bank or a banking association: (i) organized and doing business under
the laws of the United States of America or any State thereof or the District of
Columbia; (ii) authorized under such laws to exercise trust powers; (iii) having
a combined capital and surplus of at least $50,000,000; (iv) subject to
supervision or examination by federal or state authority; and (v) whose
long-term senior unsecured debt is rated not less than "Aa3" by Moody's, and
"AA" by S&P (or, in the case of each Rating Agency, such lower ratings as would
not, as confirmed in writing by such Rating Agency, result in a 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 Sellers, 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 Sellers, 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 Sellers, 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 Sellers, 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
Sellers, 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 Sellers,
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 successor trustee shall mail notice of the
succession of such trustee hereunder to the Depositor and the
Certificateholders.
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
Sellers 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 12 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 12 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 provisions of this paragraph shall not apply until such time as
any Class of Certificates is registered under the Securities Act of 1933.
Thereupon, 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, 2001 and (iii) the Form 8-K with the
following attachments: (a) the Distribution Date Statements, and (b) any
additional items requested by the Depositor, and (c) any items specifically
provided herein to be filed on behalf of the Trust under the Exchange Act;
provided that any such items shall have been received by the Trustee (to the
extent not generated by the Trustee) in the format required for electronic
filing via the EDGAR system; and provided, further, that any such items that are
required to be delivered by the Master Servicer or the Special Servicer to the
Trustee shall be so delivered in the format required for electronic filing or
readily convertible into such required format via the EDGAR system (in addition
to any other required format). The Depositor hereby grants to the Trustee a
limited power of attorney to execute and file each such document (other than the
initial 8-K) on behalf of the Depositor. Such power of attorney shall continue
until either the earlier of (i) receipt by the Trustee from the Depositor of
written termination of such power of attorney and (ii) the termination of the
Trust Fund. The Depositor agrees to promptly furnish to the Trustee, from time
to time upon request, such further information, reports, and financial
statements within its control related to this Agreement and the Mortgage Loans
as the Trustee reasonably deems appropriate to prepare and file all necessary
reports with the Commission. The Trustee shall have no responsibility to file
any such items that have not been received in such EDGAR compatible or
convertible 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 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, other than as specifically provided for in this Agreement, unless it
shall first obtain and provide, at the expense of the Trustee, an Opinion of
Counsel addressed 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 the Loan REMICs (unless
previously terminated), REMIC I, REMIC II, REMIC IIU and REMIC III and to
maintain the books and records thereof for a commercially reasonable period)
shall terminate upon payment (or provision for payment) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required hereunder to be so paid on the Distribution Date following the earlier
to occur of (i) the purchase by the Master Servicer or by any Majority
Certificateholder of the Controlling Class (other than the Depositor or the
Mortgage Loan Seller) of all Mortgage Loans and each REO Property remaining in
REMIC I or a Loan REMIC 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 or a Loan REMIC, plus (B) the appraised
value of each REO Property, if any, included in REMIC I or a Loan REMIC (such
appraisal to be conducted by a Qualified Appraiser selected by the Master
Servicer or the Special 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
or a Loan REMIC; 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 or a Loan REMIC 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
or a Loan REMIC 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 or a Loan
REMIC 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 or a Loan REMIC.
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 Loan REMIC
Regular Interests (unless previously terminated) and the REMIC I Regular
Interests, the REMIC II Uncertificated Regular Interests and the REMIC IIU
Regular Interests shall be made on such date as provided in Section 4.01(a) and
Section 4.01(j).
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.
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
or the Loan REMICs as provided in Section 9.01, the Trust (and, accordingly, the
Loan REMICs, REMIC I, REMIC II, REMIC IIU and REMIC III) shall be terminated in
accordance with the following additional requirements, unless the Master
Servicer or such Majority Certificateholder, as applicable, obtains at its own
expense and delivers to the Trustee and the REMIC Administrator an Opinion of
Counsel, addressed to the Trustee and the REMIC Administrator, to the effect
that the failure of the Trust to comply with the requirements of this Section
9.02 will not result in the imposition of taxes on "prohibited transactions" of
the Loan REMICs, REMIC I, REMIC II, REMIC IIU or REMIC III as defined in Section
860F of the Code or cause the Loan REMICs, REMIC I, REMIC II, REMIC IIU or REMIC
III to fail to qualify as a REMIC at any time that any Certificates are
outstanding:
(i) the REMIC Administrator shall specify the first day in the
90-day liquidation period in a statement attached to the final Tax Return
for each of the Loan REMICs, REMIC I, REMIC II, REMIC IIU and REMIC III
pursuant to Treasury Regulations Section 1.860F-1;
(ii) during such 90-day liquidation period and at or prior to the
time of making of the final payment on the Certificates, the Trustee shall
sell all of the assets of REMIC I to the Master Servicer or the Majority
Certificateholder of the Controlling Class, as applicable, for cash; and
(iii) prior to the end of such 90-day period and at the time of
the making of the final payment on the Loan REMIC Regular Interests and
the Certificates, the Trustee shall distribute or credit, or cause to be
distributed or credited, to the Holders of the Class R-I Certificates (in
the case of the Loan REMICs and REMIC I), the Class R-II Certificates (in
the case of REMIC II), the Class R-IIU Certificates (in the case of REMIC
IIU) and the Class R-III Certificates (in the case of REMIC III) all cash
on hand (other than cash retained to meet claims), and each of the Loan
REMICs, REMIC I, REMIC II, REMIC IIU and REMIC III shall terminate at that
time.
ARTICLE X
ADDITIONAL REMIC AND GRANTOR TRUST PROVISIONS
SECTION 10.01 REMIC Administration.
(a) The REMIC Administrator shall elect to treat each of the Loan
REMICs, REMIC I, REMIC II, REMIC IIU 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 Loan REMIC
Interests and 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
IIU Regular Interests are hereby designated as the "regular interests" (within
the meaning of Section 860G(a)(1) of the Code), and the Class R-IIU Certificates
are hereby designated as the sole Class of "residual interests" (within the
meaning of Section 860G(a)(2) of the Code), in REMIC IIU. The REMIC III
Certificates (other than the Class R-III Certificates) are hereby designated as
the "regular interests" (within the meaning of Section 860G(a)(1) of the Code),
and the Class R-III Certificates are hereby designated as the sole Class of
"residual interests" (within the meaning of Section 860G(a)(2) of the Code), in
REMIC III. 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-1, Class UA-2, Class
MB, Class MC, Class MD, Class ME, Class MF, Class MG and Class MX Uncertificated
Interests, and Class MX Uncertificated Interest represents such "specified
portions" of the interest payments on the Class LH Uncertificated Interest, the
Class LJ Uncertificated Interest the Class LK Uncertificated Interest, the Class
LL Uncertificated Interest, the Class LM Uncertificated Interest, the Class LN
Uncertificated Interest, the Class LO Uncertificated Interest and the Class LP
Uncertificated Interest. The Loan REMIC Regular Interests (instead of the
related Mortgage Loans) will be an asset of REMIC I and the Class R-I
Certificates shall represent beneficial ownership of the Loan REMIC Residual
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 either the
Loan REMICs, REMIC I, REMIC II, REMIC IIU or REMIC III (within the meaning of
Treasury Regulations Section 1.860D-1(b)(1)).
(c) The Original Closing Date is hereby designated as the "startup
day" of each of REMIC I and REMIC II within the meaning of Section 860G(a)(9) of
the Code. The Sequel Closing Date is hereby designated as the "startup day" of
each of REMIC IIU and REMIC III within the meaning of Section 860G(a)(9) of the
Code. The "latest possible maturity date", within the meaning of Treasury
Regulations Section 1.860G-1(a)(4)(iii), of the REMIC I Regular Interests and
the Regular Certificates is September 15, 2030, the Distribution Date following
the latest maturity date of any Mortgage Loan. The "startup days" of the Loan
REMICs shall each be August 31, 2000.
(d) The REMIC Administrator shall administer the Loan REMICs in
accordance with the Loan REMIC Declarations and the REMIC Provisions and shall
comply with and perform all federal and, if applicable, state and local income
tax return and information reporting requirements with respect to such Loan
REMICs, and shall otherwise administer the Loan REMICs in the same manner as
specified for the Trust REMICs in this Section 10.01. HVB Loan No. 510238 and
HVB Loan No. 540310 shall be serviced and administered in accordance with the
provisions of Article III hereof and the Loan REMIC Declarations. The REMIC
Administrator shall maintain separate accounting with respect to the Loan REMICs
sufficient (i) to comply with such return and information reporting
requirements, including quarterly and annual reporting on Schedule Q to Form
1066 to the holders of the Class R-I Certificates with respect to the Loan REMIC
Residual Interests, (ii) to account for the Loan REMIC Regular Interests as
assets of the REMIC I, (iii) to pay or cause to be paid any federal, state or
local income tax attributable to the Loan REMICs from payments received on or
with respect to the related Mortgage Loans, and (iv) to cause any payments on
the related Mortgage Loans in excess amounts distributable in respect of the
related Loan REMIC Regular Interests to be distributed in respect of the related
Loan REMIC Residual Interests.
(e) The REMIC Administrator is hereby designated as agent for the
Tax Matters Person of each of the Loan REMICs, REMIC I, REMIC II, REMIC IIU and
REMIC III and shall: act on behalf of the Trust in relation to any tax matter or
controversy, represent the Trust in any administrative or judicial proceeding
relating to an examination or audit by any governmental taxing authority,
request an administrative adjustment as to any taxable year of the Loan REMICs,
REMIC I, REMIC II, REMIC IIU or REMIC III enter into settlement agreements with
any governmental taxing agency, extend any statute of limitations relating to
any tax item of the Loan REMICs, REMIC I, REMIC II, REMIC IIU or REMIC III and
otherwise act on behalf of each of the Loan REMICs, REMIC I, REMIC II, REMIC IIU
and REMIC III in relation to any tax matter or controversy involving such REMIC.
By their acceptance thereof, the Holders of the Residual Certificates hereby
agree to irrevocably appoint the REMIC Administrator as their agent to perform
all of the duties of the Tax Matters Person for the Loan REMICs, REMIC I, REMIC
II, REMIC IIU and REMIC III. Subject to Section 10.01(h), the legal expenses and
costs of any action described in this subsection (d) and any liability resulting
therefrom shall be expenses, costs and liabilities of the Trust, and the REMIC
Administrator shall be entitled to be reimbursed therefor out of any amounts on
deposit in the Distribution Account as provided by Section 3.05(b).
(f) 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 the Loan REMICs, REMIC I, REMIC II, REMIC IIU and REMIC III.
The expenses of preparing and filing such returns shall be borne by the REMIC
Administrator without any right of reimbursement therefor.
(g) The REMIC Administrator shall perform or cause to be performed
on behalf of each of the Loan REMICs, REMIC I, REMIC II, REMIC IIU and REMIC III
all reporting and other tax compliance duties that are the responsibility of
each such REMIC under the Code, the REMIC Provisions or other compliance
guidance issued by the IRS or any other taxing authority under Applicable State
Law. Included among such duties, the REMIC Administrator shall provide, 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 and REMIC III, 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 and REMIC III.
(h) The REMIC Administrator shall perform its duties more
specifically set forth hereunder in a manner consistent with maintaining the
status of each of the Loan REMICs, REMIC I, REMIC II, REMIC IIU and REMIC III as
a REMIC under the REMIC Provisions (and each of the other parties hereto shall
assist it, to the extent reasonably requested by it). The REMIC Administrator
shall not knowingly take (or cause either the Loan REMICs, REMIC I, REMIC II,
REMIC IIU or REMIC III to take) any action or fail to take (or fail to cause to
be taken) any action within the scope of its duties more specifically set forth
hereunder that, under the REMIC Provisions, if taken or not taken, as the case
may be, could result in an Adverse REMIC Event with respect to either such
REMIC, unless the REMIC Administrator has received an Opinion of Counsel to the
effect that the contemplated action will not result in an Adverse REMIC Event.
None of the other parties hereto shall take any action (whether or not
authorized hereunder) as to which the REMIC Administrator has advised it in
writing that it has received an Opinion of Counsel to the effect that an Adverse
REMIC Event could occur with respect to such action. In addition, prior to
taking any action with respect to the Loan REMICs, REMIC I, REMIC II, REMIC IIU
or REMIC III, or causing the Loan REMICs, REMIC I, REMIC II, REMIC IIU or REMIC
III to take any action, that is not expressly permitted under the terms of this
Agreement, each of the other parties hereto will consult with the REMIC
Administrator, in writing, with respect to whether such action could cause an
Adverse REMIC Event to occur. None of the parties hereto shall take any such
action or cause the Loan REMICs, REMIC I, REMIC II, REMIC IIU or REMIC III to
take any such action as to which the REMIC Administrator has advised it in
writing that an Adverse REMIC Event could occur. The REMIC Administrator may
consult with counsel to make such written advice, and the cost of same shall be
borne: (i) if such action that is not expressly permitted by this Agreement
would be of a material benefit to or otherwise in the best interests of the
Certificateholders as a whole, by the Trust and shall be paid by the Trustee at
the direction of the REMIC Administrator out of amounts on deposit in the
Distribution Account; and (ii) otherwise by the party seeking to take the action
not permitted by this Agreement.
In the event that any tax is imposed on the Loan REMICs, REMIC I,
REMIC II, REMIC IIU or REMIC III, including, without limitation, "prohibited
transactions" taxes as defined in Section 860F(a)(2) of the Code, any taxes on
contributions to the Loan REMICs, REMIC I, REMIC II, REMIC IIU or REMIC III
after the Startup Day pursuant to Section 860G(d) of the Code, and any other tax
imposed by the Code or any applicable provisions of state or local tax laws
(other than any tax permitted to be incurred by the Special Servicer pursuant to
Section 3.17(a)), such tax, together with all incidental costs and expenses
(including, without limitation, penalties and reasonable attorneys' fees), shall
be charged to and paid by: (i) the REMIC Administrator, if such tax arises out
of or results from a breach by the REMIC Administrator of any of its obligations
under this Article X; (ii) the Trustee, if such tax arises out of or results
from a breach by the Trustee of any of its obligations under this Article X;
(iii) the Master Servicer, if such tax arises out of or results from a breach by
the Master Servicer of any of its obligations under Article III or this Article
X; (iv) the Special Servicer, if such tax arises out of or results from a breach
by the Special Servicer of any of its obligations under Article III or this
Article X; or (v) the Trust in all other instances. Any tax permitted to be
incurred by the Special Servicer pursuant to Section 3.17(a) shall be charged to
and paid by the Trust. Any such amounts payable by the Trust in respect of taxes
shall be paid by the Trustee at the direction of the REMIC Administrator out of
amounts on deposit in the Distribution Account.
(i) The REMIC Administrator and, to the extent that records are
maintained thereby in the normal course of its business, each of the other
parties hereto shall, for federal income tax purposes, maintain books and
records with respect to each of the Loan REMICs, REMIC I, REMIC II, REMIC IIU
and REMIC III on a calendar year and on an accrual basis. Such records with
respect to REMIC I shall include, for each Distribution Date, the applicable
Uncertificated Principal Balance, REMIC I Remittance Rate, and each category of
distribution on or with respect to the REMIC I Regular Interests. Such records
with respect to REMIC II shall include, for each Distribution Date, (i) 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 and (ii) the
Certificate Principal Balances, the Pass-Through Rates and each category of
distribution on or with respect to the Unaffected Certificates. Such records
with respect to REMIC IIU shall include, for each Distribution Date, the
applicable Uncertificated Principal Balance, REMIC IIU Remittance Rate, and each
category of distribution on or with respect to the REMIC IIU Uncertificated
Regular Interests. Such records with respect to REMIC III shall include for each
Distribution Date, each category of distribution on or with respect to the REMIC
III Certificates.
(j) Following the Startup Day therefor, the Trustee shall not accept
any contributions of assets to the Loan REMICs, REMIC I, REMIC II, REMIC IIU or
REMIC III unless it shall have received an Opinion of Counsel (at the expense of
the party seeking to cause such contribution) to the effect that the inclusion
of such assets in such REMIC will not cause: (i) such REMIC to fail to qualify
as a REMIC at any time that any Certificates are outstanding; or (ii) the
imposition of any tax on such REMIC under the REMIC Provisions or other
applicable provisions of federal, state and local law or ordinances.
(k) None of the REMIC Administrator, the Master Servicer, the
Special Servicer or the Trustee shall consent to or, to the extent it is within
the control of such Person, permit: (i) the sale or disposition of any of the
Mortgage Loans (except in connection with (A) a breach of any representation or
warranty of the Mortgage Loan Sellers 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 the Loan REMICs, REMIC I, REMIC II, REMIC IIU or REMIC III or
(D) the termination of the Trust pursuant to Article IX of this Agreement); (ii)
the sale or disposition of any investments in the Certificate Account or the REO
Account for gain; or (iii) the acquisition of any assets for the Trust Fund
(other than a Mortgaged Property acquired through foreclosure, deed-in-lieu of
foreclosure or otherwise in respect of a defaulted Mortgage Loan and other than
Permitted Investments acquired in connection with the investment of funds in the
Certificate Account or the REO Account); in any event unless it has received an
Opinion of Counsel (from and at the expense of the party seeking to cause such
sale, disposition, or acquisition) to the effect that such sale, disposition, or
acquisition will not cause: (x) the Loan REMICs, REMIC I, REMIC II, REMIC IIU or
REMIC III to fail to qualify as a REMIC at any time that any Certificates are
outstanding; or (y) the imposition of any tax on the Loan REMICs, REMIC I, REMIC
II, REMIC IIU or REMIC III under the REMIC Provisions or other applicable
provisions of federal, state and local law or ordinances.
(l) Except as otherwise permitted by Section 3.17(a), none of the
REMIC Administrator, the Master Servicer, the Special Servicer or the Trustee
shall enter into any arrangement by which the Loan REMICs, REMIC I, REMIC II,
REMIC IIU or REMIC III will receive a fee or other compensation for services or,
to the extent it is within the control of such Person, permit the Loan REMICs,
REMIC I, REMIC II, REMIC IIU or REMIC III to receive any income from assets
other than "qualified mortgages" as defined in Section 860G(a)(3) of the Code or
"permitted investments" as defined in Section 860G(a)(5) of the Code. At all
times as may be required by the Code, the REMIC Administrator shall make
reasonable efforts to ensure that substantially all of the assets of the Loan
REMICs, REMIC I, REMIC II, REMIC IIU and REMIC III will consist of "qualified
mortgages" as defined in Section 860G(a)(3) of the Code and "permitted
investments" as defined in Section 860G(a)(5) of the Code.
SECTION 10.02 Depositor, Master Servicer, Special Servicer and
Trustee to Cooperate with REMIC Administrator.
(a) The Depositor shall provide or cause to be provided to the REMIC
Administrator, within ten (10) days after the Original Closing Date and Sequel
Closing Date, as applicable, 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.
SECTION 10.05 Grantor Trust Administration.
The parties intend that the portions of the Trust Fund consisting of
the Loan REMIC Residual Interests, Excess Interest and the Excess Interest
Distribution Account shall be treated as a "grantor trust" under the Code, and
the provisions thereof shall be interpreted consistently with this intention. In
furtherance of such intention, the Trustee shall file or cause to be filed with
the Internal Revenue Service together with Form 1041 or such other form as may
be applicable and shall furnish or cause to be furnished (i) to the Holders of
the Class V Certificates, their allocable share of income with respect to Excess
Interest as such amounts accrue or are received, as the case may be, after the
related Anticipated Prepayment Date, and (ii) to the Holders of the Class R-I
Certificates, such information relating to the Loan REMIC Residual Interests
represented thereby as is required by the REMIC Provisions, in each case, at the
time or times and in the manner required by the Code.
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 the Loan
REMICs, REMIC I, REMIC II, REMIC IIU or REMIC III at least from the effective
date of such amendment, or would be necessary to avoid the occurrence of a
prohibited transaction or to reduce the incidence of any tax that would arise
from any actions taken with respect to the operation of the Loan REMICs, REMIC
I, REMIC II, REMIC IIU or REMIC III; (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 Sellers, 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
Bank of America Loans or HVB Mortgage Loans, (iii) to make in connection with
any such restructuring one or more additional REMIC elections with respect to
the Trust Fund, (iv) to provide for the book-entry registration of any such
existing or newly created classes of Certificates, and (v) to provide for any
holders of any Classes of Non-Registered Certificates remaining as such after
giving effect to such amendment to receive or have the right to request to
receive any statements, reports or other information which the holders of the
Class J, Class K, Class L, Class M, Class N, Class O and Class P Certificates
are entitled to receive or request to receive under this Agreement. 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 J, Class K, Class L, Class M, Class N, Class O and Class P 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 the Grantor Trust, the Loan REMICs, REMIC
I, REMIC II, REMIC IIU or REMIC III pursuant to the REMIC Provisions or cause
the Grantor Trust, the Loan REMICs, REMIC I, REMIC II, REMIC IIU or REMIC III to
fail to qualify as a Grantor Trust or a REMIC, as applicable, 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 Banc of America Commercial
Mortgage Inc., 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 Glenn Reid, 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) 387-0922;
(2) in the case of 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
HVB Realty Capital Inc., 150 East 42nd Street, New York, New York, Attention:
Daniel P. Kenny, telecopy number (212) 672-5524 (with a copy to Andrews & Kurth,
1717 Main Street, Suite 3700, Dallas, Texas 75201, Attention: Pat Sargent,
telecopy number (214) 672-5531; (4) in the case of ORIX Real Estate Capital
Markets, LLC 1717 Main Street, 12th Floor, Dallas Texas 75201, Attention: Edgar
L. Smith II, telecopy number (214) 237-2040, with a copy to Akin, Gump, Strauss,
Hauer & Field, L.L.P., 1700 Pacific, Suite 4100, Dallas, Texas 75201, Attention:
Jerry Phelps, telecopy number (214) 969-4343; (5) in the case of Lennar
Partners, Inc., 760 N.W. 107th Avenue, Suite 400, Miami, Florida 33172,
Attention: Ronald Schrager, President, telecopy number (305) 226-3428 (6) in the
case of the Trustee and REMIC Administrator, Wells Fargo Bank Minnesota, N. A.,
11000 Broken Land Parkway, Columbia, Maryland 21044-3562, Attention: Corporate
Trust Services (CMBS), Banc of America Commercial Mortgage Inc., Series 2000-2,
telecopy number (410) 884-2360; and (7) in the case of the Rating Agencies, (A)
Moody's Investors Service, Inc., 99 Church Street, New York, New York 10007,
Attention: Commercial MBS Monitoring Department, telecopy number (212) 553-0300;
(B) 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 a Mortgage Loan
Seller pursuant to Section 2.03.
(b) The Master Servicer shall promptly provide notice to each Rating
Agency with respect to each of the following of which it has actual knowledge:
(i) the resignation or removal of the Trustee and the appointment
of a successor;
(ii) any change in the location of the Certificate Account;
(iii) any event that would result in the voluntary or involuntary
termination of any insurance of the accounts of the Trustee;
(iv) any material casualty at or condemnation or eminent domain
proceeding in respect of a Mortgaged Property; and
(v) the vacating by an anchor tenant of a retail Mortgaged
Property.
(c) Each of the Master Servicer and the Special Servicer, as the
case may be, shall furnish to each Rating Agency such information with respect
to the Mortgage Loans as the Rating Agency shall reasonably request and which
the Master Servicer or the Special Servicer, as the case may be, can reasonably
provide.
(d) Each of the Master Servicer and the Special Servicer shall
promptly furnish to each Rating Agency copies of the following:
(i) each of its annual statements as to compliance described in
Section 3.13; and
(ii) each of its annual independent public accountants' servicing
reports described in Section 3.14, if any.
In addition, as and to the extent required by Section 3.12(b), each of the
Master Servicer and the Special Servicer shall promptly furnish to each Rating
Agency copies or summaries (in such format as will be acceptable to the Rating
Agency) of any of the written reports (including, without limitation, reports
regarding property inspections) prepared, and any of the quarterly and annual or
other periodic operating statements and rent rolls 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 J, Class K, Class
L, Class M, Class N, Class O and Class P 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 J, Class K, Class L, Class M, Class N,
Class O or Class P 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 J, Class K, Class L, Class M, Class
N, Class O or Class P 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.
SECTION 11.11 Forum.
The parties hereto hereby irrevocably submit to the jurisdiction of
any court of the State of New York or of the United States of America for the
Southern District of New York setting in the State, City and County of New York
with respect to any legal proceeding arising out of or relating to this
Agreement, and irrevocably waive with respect to any such proceeding in any such
court to the fullest extent possible the defense of inconvenient forum.
SECTION 11.12 Waiver of Jury Trial.
THE PARTIES HERETO KNOWINGLY, VOLUNTARILY AND EXPRESSLY WAIVE ALL
RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ENFORCING OR
DEFENDING ANY RIGHTS ARISING OUT OF OR RELATING TO THIS AGREEMENT.
<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.
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
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
HVB REALTY CAPITAL INC.,
Mortgage Loan Seller
By: /s/: Daniel P. Kenny
------------------------------
Name: Daniel P. Kenny
Title: President
By: /s/: Pamela L. Gheysen
------------------------------
Name: Pamela L. Gheysen
Title: Director
ORIX REAL ESTATE CAPITAL MARKETS, LLC
Master Servicer
By: /s/: Edgar L. Smith II
-------------------------------
Name: Edgar L. Smith II
Title: Chief Operating Officer
LENNAR PARTNERS, INC.
Special Servicer
By: /s/: Steven J. Saiontz
-------------------------------
Name: Steven J. Saiontz
Title: Chief Executive Officer
WELLS FARGO BANK MINNESOTA, N.A.
Trustee and REMIC Administrator
By: /s/: Leslie A. Gaskill
-------------------------------
Name: Leslie A. Gaskill
Title: Vice President
<PAGE>
STATE OF NORTH CAROLINA )
) ss.:
COUNTY OF MECKLENBURG )
On the 27th day of October, 2000, 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 BANC OF AMERICA COMMERCIAL MORTGAGE INC. 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 NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 19th day of October, 2000, before me, a notary public in and
for said State, personally appeared Daniel P. Kenny and Pamela L. Gheysen known
to me to be the President and Director, respectively, of HVB REALTY CAPITAL INC,
one of the entities that executed the within instrument, and also known to me to
be the person who executed it on behalf of such 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/: Linda S. Martin
-----------------------------
Notary Public
[Notarial Seal]
My commission expires:
August 2, 2001
<PAGE>
STATE OF TEXAS )
) ss.:
COUNTY OF DALLAS )
On the 25th day of October, 2000, 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/: Jerry Newman
-----------------------
Notary Public
[Notarial Seal]
My commission expires:
April 25, 2002
<PAGE>
STATE OF FLORIDA )
) ss.:
COUNTY OF MIAMI-DADE )
On the 25th day of October, 2000, before me, a notary public in and
for said State, personally appeared Steven J. Saiontz, known to me to be a Chief
Executive Officer of LENNAR PARTNERS, INC., which 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/: Jeanine A. Manzano
---------------------------
Notary Public
[Notarial Seal]
My commission expires:
March 2, 2003
<PAGE>
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 27th day of October, 2000, before me, a notary public in and
for said State, personally appeared Leslie A. Gaskill, known to me to be a Vice
President of WELLS FARGO BANK MINNESOTA, N.A. which 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>
ACKNOWLEDGED AND AGREED WITH RESPECT
TO SECTION 2.01 OF THIS AGREEMENT
BANK OF AMERICA COMMERCIAL MORTGAGE OWNER TRUST II
By: Wells Fargo Bank Minnesota. N.A.
its Co-Trustee
By: /s/ Leslie A. Gaskill
-----------------------
Name: Leslie A. Gaskill
Title: Vice President
<PAGE>
SCHEDULE 1
Banc of America Securities LLC
100 North Tryon Street
Charlotte, North Carolina 28255
Banc of America Commercial Mortgage Inc.
100 North Tryon Street
Charlotte, North Carolina 28255
Bank of America, N.A.
100 North Tryon Street
Charlotte, North Carolina 28255
HVB Realty Capital Inc.
150 East 42nd Street
New York, New York 10017-4679
HypoVereinsbank Capital Markets
150 East 42nd Street
New York, New York 10017-4679
Standard & Poor's Ratings Services,
a division of the McGraw-Hill Companies, Inc.
55 Water Street
New York, New York 10041-0003
Moody's Investor Services, Inc.
99 Church Street
New York, New York 10007
ORIX Real Estate Capital Markets, LLC
in its capacity as Master Servicer
1717 Main Street, 12th Floor
Dallas, TX 75201
Lennar Partners, Inc.
in its capacity as Special Servicer
760 N.W. 107th Avenue
Suite 400
Miami, FL 33172
Wells Fargo Bank Minnesota, N.A.
in its capacity as Trustee and REMIC Administrator
1000 Broken Land
Parkway, Columbia Maryland 21044-3562
<PAGE>
EXHIBIT A-1
FORM OF CLASS A-1 CERTIFICATE
CLASS A-1 COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2000-2
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
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Pass-Through Rate: Certificate Principal Balance of
[___] % per annum this Certificate as of the Issue
Date: $__________
Date of Amended and Restated Pooling and
Servicing Agreement: Class Principal Balance of all
October 1, 2000 the Class A-1 Certificates as of
the Issue Date: $198,316,225
Commencement Date: October 1, 2000
Issue Date: October 27, 2000 Approximate Aggregate unpaid
principal balance of the Mortgage
First Distribution Date: Pool as of the Commencement Date,
November 15, 2000 after deducting payments of
principal due on or before such
Master Servicer: date (the "Initial Pool
ORIX Real Estate Capital Markets, LLC Balance"): $889,004,533
Special Servicer: Trustee and REMIC Administrator:
Lennar Partners, Inc. Wells Fargo Bank Minnesota, N.A.
Mortgage Loan Sellers:
Bank of America, N.A.
HVB Realty Capital Inc.
Certificate No. A-1-___ 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 BANC OF
AMERICA COMMERCIAL MORTGAGE INC., BANK OF AMERICA, N.A., HVB REALTY CAPITAL
INC., WELLS FARGO BANK MINNESOTA, N.A., ORIX REAL ESTATE CAPITAL MARKETS,
LLC, LENNAR PARTNERS, INC. OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER
THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR INTEREST"
IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
principal balance of this Certificate (its "Certificate Principal Balance") as
of the Issue Date by the aggregate principal balance of all the Certificates of
the same Class as this Certificate (their "Class Principal Balance") as of the
Issue Date) in that certain beneficial ownership interest in the Trust Fund
evidenced by all the Certificates of the same Class as this Certificate. The
Trust Fund was created and the Certificates were issued pursuant to an Amended
and Restated Pooling and Servicing Agreement, dated as specified above (the
"Agreement"), among Banc of America Commercial Mortgage Inc., as Depositor, and
the Mortgage Loan Sellers, 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 15th day of each month or, if such 15th 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 Sellers, 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 Sellers, 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 Sellers) 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 Sellers, 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
Sellers, 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 IIU 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.
Wells Fargo Bank Minnesota, N.A.,
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:
Wells Fargo Bank Minnesota, N.A.,
as Certificate Registrar
By:_______________________________________
Authorized Officer
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _____________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee) the beneficial ownership interest in the Trust Fund evidenced by the
within Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to the above
named assignee and delivery of such Commercial Mortgage Pass-Through Certificate
to the following address: _____________________________________________________
_____________________________________________________________________________.
Dated:
-----------------------------------------
Signature by or on behalf of Assignor
-----------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to _________________________________
for the account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and notices
should be mailed to _______________________________________________.
This information is provided by ___________________________________,
the assignee named above, or _________________________________________, as its
agent.
<PAGE>
EXHIBIT A-2
FORM OF CLASS A-2 CERTIFICATE
CLASS A-2 COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2000-2
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
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Pass-Through Rate: Certificate Principal Balance of
Variable this Certificate as of the Issue
Date: $__________
Date of Amended and Restated Pooling and
Servicing Agreement: Class Principal Balance of all
October 1, 2000 the Class A-2 Certificates as of
the Issue Date: $447,137,063
Commencement Date: October 1, 2000
Issue Date: October 27, 2000 Approximate Aggregate unpaid
principal balance of the Mortgage
First Distribution Date: Pool as of the Commencement Date,
November 15, 2000 after deducting payments of
principal due on or before such
Master Servicer: date (the "Initial Pool
ORIX Real Estate Capital Markets, LLC Balance"): $889,004,533
Special Servicer: Trustee and REMIC Administrator:
Lennar Partners, Inc. Wells Fargo Bank Minnesota, N.A.
Mortgage Loan Sellers:
Bank of America, N.A.
HVB Realty Capital Inc.
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 BANC OF
AMERICA COMMERCIAL MORTGAGE INC., BANK OF AMERICA, N.A., HVB REALTY CAPITAL
INC., WELLS FARGO BANK MINNESOTA, N.A., ORIX REAL ESTATE CAPITAL MARKETS,
LLC, LENNAR PARTNERS, INC. OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER
THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR INTEREST"
IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
principal balance of this Certificate (its "Certificate Principal Balance") as
of the Issue Date by the aggregate principal balance of all the Certificates of
the same Class as this Certificate (their "Class Principal Balance") as of the
Issue Date) in that certain beneficial ownership interest in the Trust Fund
evidenced by all the Certificates of the same Class as this Certificate. The
Trust Fund was created and the Certificates were issued pursuant to an Amended
and Restated Pooling and Servicing Agreement, dated as specified above (the
"Agreement"), among Banc of America Commercial Mortgage Inc., as Depositor, and
the Mortgage Loan Sellers, 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 15th day of each month or, if such 15th 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 Sellers, 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 Sellers, 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 Sellers) 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 Sellers, 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
Sellers, 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 IIU 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.
Wells Fargo Bank Minnesota, N.A.,
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:
Wells Fargo Bank Minnesota, N.A.,
as Certificate Registrar
By:_______________________________________
Authorized Officer
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _____________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee) the beneficial ownership interest in the Trust Fund evidenced by the
within Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to the above
named assignee and delivery of such Commercial Mortgage Pass-Through Certificate
to the following address: _____________________________________________________
_____________________________________________________________________________.
Dated:
-----------------------------------------
Signature by or on behalf of Assignor
-----------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to _________________________________
for the account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and notices
should be mailed to _______________________________________________.
This information is provided by ___________________________________,
the assignee named above, or _________________________________________, as its
agent.
<PAGE>
EXHIBIT A-3
FORM OF CLASS X CERTIFICATE
CLASS X COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2000-2
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
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Pass-Through Rate: Certificate Principal Balance of
Variable this Certificate as of the Issue
Date: $__________
Date of Amended and Restated Pooling and
Servicing Agreement: Class Principal Balance of all
October 1, 2000 the Class X Certificates as of
the Issue Date: $889,004,533
Commencement Date: October 1, 2000
Issue Date: October 27, 2000 Approximate Aggregate unpaid
principal balance of the Mortgage
First Distribution Date: Pool as of the Commencement Date,
November 15, 2000 after deducting payments of
principal due on or before such
Master Servicer: date (the "Initial Pool
ORIX Real Estate Capital Markets, LLC Balance"): $889,004,533
Special Servicer: Trustee and REMIC Administrator:
Lennar Partners, Inc. Wells Fargo Bank Minnesota, N.A.
Mortgage Loan Sellers:
Bank of America, N.A.
HVB Realty Capital Inc.
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 BANC OF
AMERICA COMMERCIAL MORTGAGE INC., BANK OF AMERICA, N.A., HVB REALTY CAPITAL
INC., WELLS FARGO BANK MINNESOTA, N.A., ORIX REAL ESTATE CAPITAL MARKETS, LLC
,LENNAR PARTNERS, INC. OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THIS CERTIFICATE DOES NOT HAVE A CERTIFICATE PRINCIPAL BALANCE AND DOES NOT
ENTITLE THE HOLDER HEREOF TO ANY DISTRIBUTIONS OF PRINCIPAL. THE HOLDER HEREOF
WILL BE ENTITLED TO DISTRIBUTIONS OF INTEREST ACCRUED AS PROVIDED IN THE
AGREEMENT REFERRED TO HEREIN ON THE CERTIFICATE NOTIONAL AMOUNT OF THIS
CERTIFICATE, WHICH AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
notional principal amount of this Certificate (its "Certificate Notional
Amount") as of the Issue Date by the aggregate notional principal balance of all
the Certificates of the same Class as this Certificate (their "Class Notional
Amount") as of the Issue Date) in that certain beneficial ownership interest in
the Trust Fund evidenced by all the Certificates of the same Class as this
Certificate. The Trust Fund was created and the Certificates were issued
pursuant to an Amended and Restated Pooling and Servicing Agreement, dated as
specified above (the "Agreement"), among Banc of America Commercial Mortgage
Inc., as Depositor, and the Mortgage Loan Sellers, 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 15th day of each month or, if such 15th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date"), commencing on
the first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed pursuant to the
Agreement on the applicable Distribution Date in respect of the Class of
Certificates to which this Certificate belongs. All distributions made under the
Agreement in respect of this Certificate will be made by the Trustee by wire
transfer in immediately available funds to the account of the Person entitled
thereto at a bank or other entity having appropriate facilities therefor, if
such Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate will be made after due notice by the Trustee of the pendency of such
distribution and only upon presentation and surrender of this Certificate at the
offices of the Certificate Registrar appointed as provided in the Agreement or
such other location as may be specified in such notice.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without
coupons in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer
or exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
For so long as this Certificate is registered in the name of Cede &
Co., or in such other name as is requested by an authorized representative of
DTC, transfers of interests in this Certificate shall be made through the
book-entry facilities of DTC.
Prior to due presentment of this Certificate for registration of
transfer, the Depositor, the Mortgage Loan Sellers, 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 Sellers, 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 Sellers) 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 Sellers, 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
Sellers, 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 IIU 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.
Wells Fargo Bank Minnesota, N.A.,
as Trustee
By:_______________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class X Certificates referred to in the
within-mentioned Agreement.
Dated:
Wells Fargo Bank Minnesota, N.A.,
as Certificate Registrar
By:_______________________________________
Authorized Officer
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _____________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee) the beneficial ownership interest in the Trust Fund evidenced by the
within Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to the above
named assignee and delivery of such Commercial Mortgage Pass-Through Certificate
to the following address: _____________________________________________________
_____________________________________________________________________________.
Dated:
-----------------------------------------
Signature by or on behalf of Assignor
-----------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to _________________________________
for the account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and notices
should be mailed to _______________________________________________.
This information is provided by ___________________________________,
the assignee named above, or _________________________________________, as its
agent.
<PAGE>
EXHIBIT A-4
FORM OF CLASS B CERTIFICATE
CLASS B COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2000-2
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
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Pass-Through Rate: Certificate Principal Balance of
Variable this Certificate as of the Issue
Date: $__________
Date of Amended and Restated Pooling and
Servicing Agreement: Class Principal Balance of all
October 1, 2000 the Class B Certificates as of
the Issue Date: $37,816,366
Commencement Date: October 1, 2000
Issue Date: October 27, 2000 Approximate Aggregate unpaid
principal balance of the Mortgage
First Distribution Date: Pool as of the Commencement Date,
November 15, 2000 after deducting payments of
principal due on or before such
Master Servicer: date (the "Initial Pool
ORIX Real Estate Capital Markets, LLC Balance"): $889,004,533
Special Servicer: Trustee and REMIC Administrator:
Lennar Partners, Inc. Wells Fargo Bank Minnesota, N.A.
Mortgage Loan Sellers:
Bank of America, N.A.
HVB Realty Capital Inc.
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 BANC OF
AMERICA COMMERCIAL MORTGAGE INC., BANK OF AMERICA, N.A., HVB REALTY CAPITAL
INC., WELLS FARGO BANK MINNESOTA, N.A., ORIX REAL ESTATE CAPITAL MARKETS,
LLC, LENNAR PARTNERS, INC. OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER
THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (I) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR A GOVERNMENTAL PLAN
(AS DEFINED IN SECTION 3(32) OF ERISA) SUBJECT TO ANY FEDERAL, STATE OR LOCAL
LAW ("SIMILAR LAW") WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING
PROVISIONS OF ERISA OR THE CODE (EACH A "PLAN") OR (II) A PERSON ACTING ON
BEHALF OF OR USING THE ASSETS OF ANY SUCH PLAN (INCLUDING AN ENTITY WHOSE
UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF INVESTMENT IN THE ENTITY BY
SUCH PLAN AND THE APPLICATION OF DEPARTMENT OF LABOR REGULATION SS. 2510.3-101),
OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER
CIRCUMSTANCES WHEREBY THE PURCHASE AND HOLDING OF SUBORDINATE CERTIFICATES BY
SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE PROHIBITED TRANSACTION
PROVISIONS OF ERISA AND THE CODE UNDER PROHIBITED TRANSACTION CLASS EXEMPTION
95-60 OR (B) IF SUCH CERTIFICATE IS PRESENTED FOR REGISTRATION IN THE NAME OF A
PERSON DESCRIBED IN CLAUSES (I) OR (II) ABOVE, AN OPINION OF COUNSEL IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR TO THE
EFFECT THAT SUCH ACQUISITION AND HOLDING OF SUCH CERTIFICATE BY SUCH PROPOSED
PURCHASER OR TRANSFEREE WILL NOT RESULT IN THE ASSETS OF THE TRUST FUND BEING
DEEMED TO BE "PLAN ASSETS" AND SUBJECT TO THE FIDUCIARY RESPONSIBILITY
PROVISIONS OF ERISA, THE PROHIBITED TRANSACTION PROVISIONS OF THE CODE OR THE
PROVISIONS OF ANY SIMILAR LAW, WILL NOT CONSTITUTE OR RESULT IN A "PROHIBITED
TRANSACTION" WITHIN THE MEANING OF ERISA, SECTION 4975 OF THE CODE OR ANY
SIMILAR LAW, AND WILL NOT SUBJECT THE TRUSTEE, THE CERTIFICATE REGISTRAR, THE
MASTER SERVICER, THE SPECIAL SERVICER, THE PLACEMENT AGENT OR THE DEPOSITOR TO
ANY OBLIGATION OR LIABILITY (INCLUDING OBLIGATIONS OR LIABILITIES UNDER ERISA,
SECTION 4975 OF THE CODE OR ANY SUCH SIMILAR LAW) IN ADDITION TO THOSE SET FORTH
IN THE AGREEMENT. THE TRANSFEREE OF A BENEFICIAL INTEREST IN A CERTIFICATE THAT
IS A BOOK-ENTRY CERTIFICATE SHALL BE DEEMED TO REPRESENT THAT IT IS NOT A PERSON
DESCRIBED IN CLAUSES (I) OR (II) ABOVE.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR INTEREST"
IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF OF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
principal balance of this Certificate (its "Certificate Principal Balance") as
of the Issue Date by the aggregate principal balance of all the Certificates of
the same Class as this Certificate (their "Class Principal Balance") as of the
Issue Date) in that certain beneficial ownership interest in the Trust Fund
evidenced by all the Certificates of the same Class as this Certificate. The
Trust Fund was created and the Certificates were issued pursuant to an Amended
and Restated Pooling and Servicing Agreement, dated as specified above (the
"Agreement"), among Banc of America Commercial Mortgage Inc., as Depositor, and
the Mortgage Loan Sellers, 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 15th day of each month or, if such 15th 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 Sellers, 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 Sellers, 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 Sellers) 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 Sellers, 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
Sellers, 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 IIU 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.
Wells Fargo Bank Minnesota, N.A.,
as Trustee
By:_______________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class B Certificates referred to in the
within-mentioned Agreement.
Dated:
Wells Fargo Bank Minnesota, N.A.,
as Certificate Registrar
By:_______________________________________
Authorized Officer
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _____________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee) the beneficial ownership interest in the Trust Fund evidenced by the
within Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to the above
named assignee and delivery of such Commercial Mortgage Pass-Through Certificate
to the following address: _____________________________________________________
_____________________________________________________________________________.
Dated:
-----------------------------------------
Signature by or on behalf of Assignor
-----------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to _________________________________
for the account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and notices
should be mailed to _______________________________________________.
This information is provided by ___________________________________,
the assignee named above, or _________________________________________, as its
agent.
<PAGE>
EXHIBIT A-5
FORM OF CLASS C CERTIFICATE
CLASS C COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2000-2
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
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Pass-Through Rate: Certificate Principal Balance of
Variable this Certificate as of the Issue
Date: $__________
Date of Amended and Restated Pooling and
Servicing Agreement: Class Principal Balance of all
October 1, 2000 the Class C Certificates as of
the Issue Date: $24,469,413
Commencement Date: October 1, 2000
Issue Date: October 27, 2000 Approximate Aggregate unpaid
principal balance of the Mortgage
First Distribution Date: Pool as of the Commencement Date,
November 15, 2000 after deducting payments of
principal due on or before such
Master Servicer: date (the "Initial Pool
ORIX Real Estate Capital Markets, LLC Balance"): $889,004,533
Special Servicer: Trustee and REMIC Administrator:
Lennar Partners, Inc. Wells Fargo Bank Minnesota, N.A.
Mortgage Loan Sellers:
Bank of America, N.A.
HVB Realty Capital Inc.
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 BANC OF
AMERICA COMMERCIAL MORTGAGE INC., BANK OF AMERICA, N.A., HVB REALTY CAPITAL
INC., WELLS FARGO BANK MINNESOTA, N.A., ORIX REAL ESTATE CAPITAL MARKETS,
LLC, LENNAR PARTNERS, INC. OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER
THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (I) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR A GOVERNMENTAL PLAN
(AS DEFINED IN SECTION 3(32) OF ERISA) SUBJECT TO ANY FEDERAL, STATE OR LOCAL
LAW ("SIMILAR LAW") WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING
PROVISIONS OF ERISA OR THE CODE (EACH A "PLAN") OR (II) A PERSON ACTING ON
BEHALF OF OR USING THE ASSETS OF ANY SUCH PLAN (INCLUDING AN ENTITY WHOSE
UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF INVESTMENT IN THE ENTITY BY
SUCH PLAN AND THE APPLICATION OF DEPARTMENT OF LABOR REGULATION SS. 2510.3-101),
OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER
CIRCUMSTANCES WHEREBY THE PURCHASE AND HOLDING OF SUBORDINATE CERTIFICATES BY
SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE PROHIBITED TRANSACTION
PROVISIONS OF ERISA AND THE CODE UNDER PROHIBITED TRANSACTION CLASS EXEMPTION
95-60 OR (B) IF SUCH CERTIFICATE IS PRESENTED FOR REGISTRATION IN THE NAME OF A
PERSON DESCRIBED IN CLAUSES (I) OR (II) ABOVE, AN OPINION OF COUNSEL IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR TO THE
EFFECT THAT SUCH ACQUISITION AND HOLDING OF SUCH CERTIFICATE BY SUCH PROPOSED
PURCHASER OR TRANSFEREE WILL NOT RESULT IN THE ASSETS OF THE TRUST FUND BEING
DEEMED TO BE "PLAN ASSETS" AND SUBJECT TO THE FIDUCIARY RESPONSIBILITY
PROVISIONS OF ERISA, THE PROHIBITED TRANSACTION PROVISIONS OF THE CODE OR THE
PROVISIONS OF ANY SIMILAR LAW, WILL NOT CONSTITUTE OR RESULT IN A "PROHIBITED
TRANSACTION" WITHIN THE MEANING OF ERISA, SECTION 4975 OF THE CODE OR ANY
SIMILAR LAW, AND WILL NOT SUBJECT THE TRUSTEE, THE CERTIFICATE REGISTRAR, THE
MASTER SERVICER, THE SPECIAL SERVICER, THE PLACEMENT AGENT OR THE DEPOSITOR TO
ANY OBLIGATION OR LIABILITY (INCLUDING OBLIGATIONS OR LIABILITIES UNDER ERISA,
SECTION 4975 OF THE CODE OR ANY SUCH SIMILAR LAW) IN ADDITION TO THOSE SET FORTH
IN THE AGREEMENT. THE TRANSFEREE OF A BENEFICIAL INTEREST IN A CERTIFICATE THAT
IS A BOOK-ENTRY CERTIFICATE SHALL BE DEEMED TO REPRESENT THAT IT IS NOT A PERSON
DESCRIBED IN CLAUSES (I) OR (II) ABOVE.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR INTEREST"
IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF OF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
principal balance of this Certificate (its "Certificate Principal Balance") as
of the Issue Date by the aggregate principal balance of all the Certificates of
the same Class as this Certificate (their "Class Principal Balance") as of the
Issue Date) in that certain beneficial ownership interest in the Trust Fund
evidenced by all the Certificates of the same Class as this Certificate. The
Trust Fund was created and the Certificates were issued pursuant to an Amended
and Restated Pooling and Servicing Agreement, dated as specified above (the
"Agreement"), among Banc of America Commercial Mortgage Inc., as Depositor, and
the Mortgage Loan Sellers, 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 15th day of each month or, if such 15th 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 Sellers, 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 Sellers, 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 Sellers) 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 Sellers, 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
Sellers, 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 IIU 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.
Wells Fargo Bank Minnesota, N.A.,
as Trustee
By:_______________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class C Certificates referred to in the
within-mentioned Agreement.
Dated:
Wells Fargo Bank Minnesota, N.A.,
as Certificate Registrar
By:_______________________________________
Authorized Officer
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _____________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee) the beneficial ownership interest in the Trust Fund evidenced by the
within Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to the above
named assignee and delivery of such Commercial Mortgage Pass-Through Certificate
to the following address: _____________________________________________________
_____________________________________________________________________________.
Dated:
-----------------------------------------
Signature by or on behalf of Assignor
-----------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to _________________________________
for the account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and notices
should be mailed to _______________________________________________.
This information is provided by ___________________________________,
the assignee named above, or _________________________________________, as its
agent.
<PAGE>
EXHIBIT A-6
FORM OF CLASS D CERTIFICATE
CLASS D COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2000-2
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
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Pass-Through Rate: Certificate Principal Balance of
Variable this Certificate as of the Issue
Date: $__________
Date of Amended and Restated Pooling and
Servicing Agreement: Class Principal Balance of all
October 1, 2000 the Class D Certificates as of
the Issue Date: $17,795,938
Commencement Date: October 1, 2000
Issue Date: October 27, 2000 Approximate Aggregate unpaid
principal balance of the Mortgage
First Distribution Date: Pool as of the Commencement Date,
November 15, 2000 after deducting payments of
principal due on or before such
Master Servicer: date (the "Initial Pool
ORIX Real Estate Capital Markets, LLC Balance"): $889,004,533
Special Servicer: Trustee and REMIC Administrator:
Lennar Partners, Inc. Wells Fargo Bank Minnesota, N.A.
Mortgage Loan Sellers:
Bank of America, N.A.
HVB Realty Capital Inc.
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 BANC OF
AMERICA COMMERCIAL MORTGAGE INC., BANK OF AMERICA, N.A., HVB REALTY CAPITAL
INC., WELLS FARGO BANK MINNESOTA, N.A., ORIX REAL ESTATE CAPITAL MARKETS,
LLC, LENNAR PARTNERS, INC. OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER
THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (I) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR A GOVERNMENTAL PLAN
(AS DEFINED IN SECTION 3(32) OF ERISA) SUBJECT TO ANY FEDERAL, STATE OR LOCAL
LAW ("SIMILAR LAW") WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING
PROVISIONS OF ERISA OR THE CODE (EACH A "PLAN") OR (II) A PERSON ACTING ON
BEHALF OF OR USING THE ASSETS OF ANY SUCH PLAN (INCLUDING AN ENTITY WHOSE
UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF INVESTMENT IN THE ENTITY BY
SUCH PLAN AND THE APPLICATION OF DEPARTMENT OF LABOR REGULATION SS. 2510.3-101),
OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER
CIRCUMSTANCES WHEREBY THE PURCHASE AND HOLDING OF SUBORDINATE CERTIFICATES BY
SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE PROHIBITED TRANSACTION
PROVISIONS OF ERISA AND THE CODE UNDER PROHIBITED TRANSACTION CLASS EXEMPTION
95-60 OR (B) IF SUCH CERTIFICATE IS PRESENTED FOR REGISTRATION IN THE NAME OF A
PERSON DESCRIBED IN CLAUSES (I) OR (II) ABOVE, AN OPINION OF COUNSEL IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR TO THE
EFFECT THAT SUCH ACQUISITION AND HOLDING OF SUCH CERTIFICATE BY SUCH PROPOSED
PURCHASER OR TRANSFEREE WILL NOT RESULT IN THE ASSETS OF THE TRUST FUND BEING
DEEMED TO BE "PLAN ASSETS" AND SUBJECT TO THE FIDUCIARY RESPONSIBILITY
PROVISIONS OF ERISA, THE PROHIBITED TRANSACTION PROVISIONS OF THE CODE OR THE
PROVISIONS OF ANY SIMILAR LAW, WILL NOT CONSTITUTE OR RESULT IN A "PROHIBITED
TRANSACTION" WITHIN THE MEANING OF ERISA, SECTION 4975 OF THE CODE OR ANY
SIMILAR LAW, AND WILL NOT SUBJECT THE TRUSTEE, THE CERTIFICATE REGISTRAR, THE
MASTER SERVICER, THE SPECIAL SERVICER, THE PLACEMENT AGENT OR THE DEPOSITOR TO
ANY OBLIGATION OR LIABILITY (INCLUDING OBLIGATIONS OR LIABILITIES UNDER ERISA,
SECTION 4975 OF THE CODE OR ANY SUCH SIMILAR LAW) IN ADDITION TO THOSE SET FORTH
IN THE AGREEMENT. THE TRANSFEREE OF A BENEFICIAL INTEREST IN A CERTIFICATE THAT
IS A BOOK-ENTRY CERTIFICATE SHALL BE DEEMED TO REPRESENT THAT IT IS NOT A PERSON
DESCRIBED IN CLAUSES (I) OR (II) ABOVE.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR INTEREST"
IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF OF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
principal balance of this Certificate (its "Certificate Principal Balance") as
of the Issue Date by the aggregate principal balance of all the Certificates of
the same Class as this Certificate (their "Class Principal Balance") as of the
Issue Date) in that certain beneficial ownership interest in the Trust Fund
evidenced by all the Certificates of the same Class as this Certificate. The
Trust Fund was created and the Certificates were issued pursuant to an Amended
and Restated Pooling and Servicing Agreement, dated as specified above (the
"Agreement"), among Banc of America Commercial Mortgage Inc., as Depositor, and
the Mortgage Loan Sellers, 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 15th day of each month or, if such 15th 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 Sellers, 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 Sellers, 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 Sellers) 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 Sellers, 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
Sellers, 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 IIU 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.
Wells Fargo Bank Minnesota, N.A.,
as Trustee
By:_______________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class D Certificates referred to in the
within-mentioned Agreement.
Dated:
Wells Fargo Bank Minnesota, N.A.,
as Certificate Registrar
By:_______________________________________
Authorized Officer
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _____________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee) the beneficial ownership interest in the Trust Fund evidenced by the
within Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to the above
named assignee and delivery of such Commercial Mortgage Pass-Through Certificate
to the following address: _____________________________________________________
_____________________________________________________________________________.
Dated:
-----------------------------------------
Signature by or on behalf of Assignor
-----------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to _________________________________
for the account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and notices
should be mailed to _______________________________________________.
This information is provided by ___________________________________,
the assignee named above, or _________________________________________, as its
agent.
<PAGE>
EXHIBIT A-7
FORM OF CLASS E CERTIFICATE
CLASS E COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2000-2
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
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Pass-Through Rate: Certificate Principal Balance of
Variable this Certificate as of the Issue
Date: $__________
Date of Amended and Restated Pooling and
Servicing Agreement: Class Principal Balance of all
October 1, 2000 the Class E Certificates as of
the Issue Date: $8,897,968
Commencement Date: October 1, 2000
Issue Date: October 27, 2000 Approximate Aggregate unpaid
principal balance of the Mortgage
First Distribution Date: Pool as of the Commencement Date,
November 15, 2000 after deducting payments of
principal due on or before such
Master Servicer: date (the "Initial Pool
ORIX Real Estate Capital Markets, LLC Balance"): $889,004,533
Special Servicer: Trustee and REMIC Administrator:
Lennar Partners, Inc. Wells Fargo Bank Minnesota, N.A.
Mortgage Loan Sellers:
Bank of America, N.A.
HVB Realty Capital Inc.
Certificate No. E-_____ 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 BANC OF
AMERICA COMMERCIAL MORTGAGE INC., BANK OF AMERICA, N.A., HVB REALTY CAPITAL
INC., WELLS FARGO BANK MINNESOTA, N.A., ORIX REAL ESTATE CAPITAL MARKETS,
LLC, LENNAR PARTNERS, INC. OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER
THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (I) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR A GOVERNMENTAL PLAN
(AS DEFINED IN SECTION 3(32) OF ERISA) SUBJECT TO ANY FEDERAL, STATE OR LOCAL
LAW ("SIMILAR LAW") WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING
PROVISIONS OF ERISA OR THE CODE (EACH A "PLAN") OR (II) A PERSON ACTING ON
BEHALF OF OR USING THE ASSETS OF ANY SUCH PLAN (INCLUDING AN ENTITY WHOSE
UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF INVESTMENT IN THE ENTITY BY
SUCH PLAN AND THE APPLICATION OF DEPARTMENT OF LABOR REGULATION SS. 2510.3-101),
OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER
CIRCUMSTANCES WHEREBY THE PURCHASE AND HOLDING OF SUBORDINATE CERTIFICATES BY
SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE PROHIBITED TRANSACTION
PROVISIONS OF ERISA AND THE CODE UNDER PROHIBITED TRANSACTION CLASS EXEMPTION
95-60 OR (B) IF SUCH CERTIFICATE IS PRESENTED FOR REGISTRATION IN THE NAME OF A
PERSON DESCRIBED IN CLAUSES (I) OR (II) ABOVE, AN OPINION OF COUNSEL IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR TO THE
EFFECT THAT SUCH ACQUISITION AND HOLDING OF SUCH CERTIFICATE BY SUCH PROPOSED
PURCHASER OR TRANSFEREE WILL NOT RESULT IN THE ASSETS OF THE TRUST FUND BEING
DEEMED TO BE "PLAN ASSETS" AND SUBJECT TO THE FIDUCIARY RESPONSIBILITY
PROVISIONS OF ERISA, THE PROHIBITED TRANSACTION PROVISIONS OF THE CODE OR THE
PROVISIONS OF ANY SIMILAR LAW, WILL NOT CONSTITUTE OR RESULT IN A "PROHIBITED
TRANSACTION" WITHIN THE MEANING OF ERISA, SECTION 4975 OF THE CODE OR ANY
SIMILAR LAW, AND WILL NOT SUBJECT THE TRUSTEE, THE CERTIFICATE REGISTRAR, THE
MASTER SERVICER, THE SPECIAL SERVICER, THE PLACEMENT AGENT OR THE DEPOSITOR TO
ANY OBLIGATION OR LIABILITY (INCLUDING OBLIGATIONS OR LIABILITIES UNDER ERISA,
SECTION 4975 OF THE CODE OR ANY SUCH SIMILAR LAW) IN ADDITION TO THOSE SET FORTH
IN THE AGREEMENT. THE TRANSFEREE OF A BENEFICIAL INTEREST IN A CERTIFICATE THAT
IS A BOOK-ENTRY CERTIFICATE SHALL BE DEEMED TO REPRESENT THAT IT IS NOT A PERSON
DESCRIBED IN CLAUSES (I) OR (II) ABOVE.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR INTEREST"
IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF OF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
principal balance of this Certificate (its "Certificate Principal Balance") as
of the Issue Date by the aggregate principal balance of all the Certificates of
the same Class as this Certificate (their "Class Principal Balance") as of the
Issue Date) in that certain beneficial ownership interest in the Trust Fund
evidenced by all the Certificates of the same Class as this Certificate. The
Trust Fund was created and the Certificates were issued pursuant to an Amended
and Restated Pooling and Servicing Agreement, dated as specified above (the
"Agreement"), among Banc of America Commercial Mortgage Inc., as Depositor, and
the Mortgage Loan Sellers, 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 15th day of each month or, if such 15th 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 Sellers, 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 Sellers, 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 Sellers) 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 Sellers, 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
Sellers, 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 IIU 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.
Wells Fargo Bank Minnesota, N.A.,
as Trustee
By:_______________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class E Certificates referred to in the
within-mentioned Agreement.
Dated:
Wells Fargo Bank Minnesota, N.A.,
as Certificate Registrar
By:_______________________________________
Authorized Officer
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _____________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee) the beneficial ownership interest in the Trust Fund evidenced by the
within Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to the above
named assignee and delivery of such Commercial Mortgage Pass-Through Certificate
to the following address: _____________________________________________________
_____________________________________________________________________________.
Dated:
-----------------------------------------
Signature by or on behalf of Assignor
-----------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to _________________________________
for the account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and notices
should be mailed to _______________________________________________.
This information is provided by ___________________________________,
the assignee named above, or _________________________________________, as its
agent.
<PAGE>
EXHIBIT A-8
FORM OF CLASS F CERTIFICATE
CLASS F COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2000-2
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
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Pass-Through Rate: Certificate Principal Balance of
Variable this Certificate as of the Issue
Date: $__________
Date of Amended and Restated Pooling and
Servicing Agreement: Class Principal Balance of all
October 1, 2000 the Class A-1 Certificates as of
the Issue Date: $11,122,461
Commencement Date: October 1, 2000
Issue Date: October 27, 2000 Approximate Aggregate unpaid
principal balance of the Mortgage
First Distribution Date: Pool as of the Commencement Date,
November 15, 2000 after deducting payments of
principal due on or before such
Master Servicer: date (the "Initial Pool
ORIX Real Estate Capital Markets, LLC Balance"): $889,004,533
Special Servicer: Trustee and REMIC Administrator:
Lennar Partners, Inc. Wells Fargo Bank Minnesota, N.A.
Mortgage Loan Sellers:
Bank of America, N.A.
HVB Realty Capital Inc.
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 BANC OF
AMERICA COMMERCIAL MORTGAGE INC., BANK OF AMERICA, N.A., HVB REALTY CAPITAL
INC., WELLS FARGO BANK MINNESOTA, N.A., ORIX REAL ESTATE CAPITAL MARKETS,
LLC, LENNAR PARTNERS, INC. OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER
THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (I) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR A GOVERNMENTAL PLAN
(AS DEFINED IN SECTION 3(32) OF ERISA) SUBJECT TO ANY FEDERAL, STATE OR LOCAL
LAW ("SIMILAR LAW") WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING
PROVISIONS OF ERISA OR THE CODE (EACH A "PLAN") OR (II) A PERSON ACTING ON
BEHALF OF OR USING THE ASSETS OF ANY SUCH PLAN (INCLUDING AN ENTITY WHOSE
UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF INVESTMENT IN THE ENTITY BY
SUCH PLAN AND THE APPLICATION OF DEPARTMENT OF LABOR REGULATION SS. 2510.3-101),
OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER
CIRCUMSTANCES WHEREBY THE PURCHASE AND HOLDING OF SUBORDINATE CERTIFICATES BY
SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE PROHIBITED TRANSACTION
PROVISIONS OF ERISA AND THE CODE UNDER PROHIBITED TRANSACTION CLASS EXEMPTION
95-60 OR (B) IF SUCH CERTIFICATE IS PRESENTED FOR REGISTRATION IN THE NAME OF A
PERSON DESCRIBED IN CLAUSES (I) OR (II) ABOVE, AN OPINION OF COUNSEL IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR TO THE
EFFECT THAT SUCH ACQUISITION AND HOLDING OF SUCH CERTIFICATE BY SUCH PROPOSED
PURCHASER OR TRANSFEREE WILL NOT RESULT IN THE ASSETS OF THE TRUST FUND BEING
DEEMED TO BE "PLAN ASSETS" AND SUBJECT TO THE FIDUCIARY RESPONSIBILITY
PROVISIONS OF ERISA, THE PROHIBITED TRANSACTION PROVISIONS OF THE CODE OR THE
PROVISIONS OF ANY SIMILAR LAW, WILL NOT CONSTITUTE OR RESULT IN A "PROHIBITED
TRANSACTION" WITHIN THE MEANING OF ERISA, SECTION 4975 OF THE CODE OR ANY
SIMILAR LAW, AND WILL NOT SUBJECT THE TRUSTEE, THE CERTIFICATE REGISTRAR, THE
MASTER SERVICER, THE SPECIAL SERVICER, THE PLACEMENT AGENT OR THE DEPOSITOR TO
ANY OBLIGATION OR LIABILITY (INCLUDING OBLIGATIONS OR LIABILITIES UNDER ERISA,
SECTION 4975 OF THE CODE OR ANY SUCH SIMILAR LAW) IN ADDITION TO THOSE SET FORTH
IN THE AGREEMENT. THE TRANSFEREE OF A BENEFICIAL INTEREST IN A CERTIFICATE THAT
IS A BOOK-ENTRY CERTIFICATE SHALL BE DEEMED TO REPRESENT THAT IT IS NOT A PERSON
DESCRIBED IN CLAUSES (I) OR (II) ABOVE.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR INTEREST"
IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF OF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
principal balance of this Certificate (its "Certificate Principal Balance") as
of the Issue Date by the aggregate principal balance of all the Certificates of
the same Class as this Certificate (their "Class Principal Balance") as of the
Issue Date) in that certain beneficial ownership interest in the Trust Fund
evidenced by all the Certificates of the same Class as this Certificate. The
Trust Fund was created and the Certificates were issued pursuant to an Amended
and Restated Pooling and Servicing Agreement, dated as specified above (the
"Agreement"), among Banc of America Commercial Mortgage Inc., as Depositor, and
the Mortgage Loan Sellers, 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 15th day of each month or, if such 15th 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 Sellers, 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 Sellers, 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 Sellers) 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 Sellers, 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
Sellers, 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 IIU 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.
Wells Fargo Bank Minnesota, N.A.,
as Trustee
By:_______________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class F Certificates referred to in the
within-mentioned Agreement.
Dated:
Wells Fargo Bank Minnesota, N.A.,
as Certificate Registrar
By:_______________________________________
Authorized Officer
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _____________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee) the beneficial ownership interest in the Trust Fund evidenced by the
within Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to the above
named assignee and delivery of such Commercial Mortgage Pass-Through Certificate
to the following address: _____________________________________________________
_____________________________________________________________________________.
Dated:
-----------------------------------------
Signature by or on behalf of Assignor
-----------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to _________________________________
for the account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and notices
should be mailed to _______________________________________________.
This information is provided by ___________________________________,
the assignee named above, or _________________________________________, as its
agent.
<PAGE>
EXHIBIT A-9
FORM OF CLASS G CERTIFICATE
CLASS G COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2000-2
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
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Pass-Through Rate: Certificate Principal Balance of
Variable this Certificate as of the Issue
Date: $__________
Date of Pooling and
Servicing Agreement: Class Principal Balance of all
October 1, 2000 the Class G Certificates as of
the Issue Date: $17,795,937
Commencement Date: October 1, 2000
Issue Date: October 27, 2000 Approximate Aggregate unpaid
principal balance of the Mortgage
First Distribution Date: Pool as of the Commencement Date,
November 15, 2000 after deducting payments of
principal due on or before such
Master Servicer: date (the "Initial Pool
ORIX Real Estate Capital Markets, LLC Balance"): $889,004,533
Special Servicer: Trustee and REMIC Administrator:
Lennar Partners, Inc. Wells Fargo Bank Minnesota, N.A.
Mortgage Loan Sellers:
Bank of America, N.A.
HVB Realty Capital Inc.
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 BANC OF
AMERICA COMMERCIAL MORTGAGE INC., BANK OF AMERICA, N.A., HVB REALTY CAPITAL
INC., WELLS FARGO BANK MINNESOTA, N.A., ORIX REAL ESTATE CAPITAL MARKETS,
LLC, LENNAR PARTNERS, INC. OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER
THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (I) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR A GOVERNMENTAL PLAN
(AS DEFINED IN SECTION 3(32) OF ERISA) SUBJECT TO ANY FEDERAL, STATE OR LOCAL
LAW ("SIMILAR LAW") WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING
PROVISIONS OF ERISA OR THE CODE (EACH A "PLAN") OR (II) A PERSON ACTING ON
BEHALF OF OR USING THE ASSETS OF ANY SUCH PLAN (INCLUDING AN ENTITY WHOSE
UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF INVESTMENT IN THE ENTITY BY
SUCH PLAN AND THE APPLICATION OF DEPARTMENT OF LABOR REGULATION SS. 2510.3-101),
OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER
CIRCUMSTANCES WHEREBY THE PURCHASE AND HOLDING OF SUBORDINATE CERTIFICATES BY
SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE PROHIBITED TRANSACTION
PROVISIONS OF ERISA AND THE CODE UNDER PROHIBITED TRANSACTION CLASS EXEMPTION
95-60 OR (B) IF SUCH CERTIFICATE IS PRESENTED FOR REGISTRATION IN THE NAME OF A
PERSON DESCRIBED IN CLAUSES (I) OR (II) ABOVE, AN OPINION OF COUNSEL IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR TO THE
EFFECT THAT SUCH ACQUISITION AND HOLDING OF SUCH CERTIFICATE BY SUCH PROPOSED
PURCHASER OR TRANSFEREE WILL NOT RESULT IN THE ASSETS OF THE TRUST FUND BEING
DEEMED TO BE "PLAN ASSETS" AND SUBJECT TO THE FIDUCIARY RESPONSIBILITY
PROVISIONS OF ERISA, THE PROHIBITED TRANSACTION PROVISIONS OF THE CODE OR THE
PROVISIONS OF ANY SIMILAR LAW, WILL NOT CONSTITUTE OR RESULT IN A "PROHIBITED
TRANSACTION" WITHIN THE MEANING OF ERISA, SECTION 4975 OF THE CODE OR ANY
SIMILAR LAW, AND WILL NOT SUBJECT THE TRUSTEE, THE CERTIFICATE REGISTRAR, THE
MASTER SERVICER, THE SPECIAL SERVICER, THE PLACEMENT AGENT OR THE DEPOSITOR TO
ANY OBLIGATION OR LIABILITY (INCLUDING OBLIGATIONS OR LIABILITIES UNDER ERISA,
SECTION 4975 OF THE CODE OR ANY SUCH SIMILAR LAW) IN ADDITION TO THOSE SET FORTH
IN THE AGREEMENT. THE TRANSFEREE OF A BENEFICIAL INTEREST IN A CERTIFICATE THAT
IS A BOOK-ENTRY CERTIFICATE SHALL BE DEEMED TO REPRESENT THAT IT IS NOT A PERSON
DESCRIBED IN CLAUSES (I) OR (II) ABOVE.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR INTEREST"
IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF OF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
principal balance of this Certificate (its "Certificate Principal Balance") as
of the Issue Date by the aggregate principal balance of all the Certificates of
the same Class as this Certificate (their "Class Principal Balance") as of the
Issue Date) in that certain beneficial ownership interest in the Trust Fund
evidenced by all the Certificates of the same Class as this Certificate. The
Trust Fund was created and the Certificates were issued pursuant to an Amended
and Restated Pooling and Servicing Agreement, dated as specified above (the
"Agreement"), among Banc of America Commercial Mortgage Inc., as Depositor, and
the Mortgage Loan Sellers, 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 15th day of each month or, if such 15th 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 Sellers, 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 Sellers, 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 Sellers) 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 Sellers, 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
Sellers, 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 IIU 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.
Wells Fargo Bank Minnesota, N.A.,
as Trustee
By:_______________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class G Certificates referred to in the
within-mentioned Agreement.
Dated:
Wells Fargo Bank Minnesota, N.A.,
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 H CERTIFICATE
CLASS H COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2000-2
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
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Pass-Through Rate: Certificate Principal Balance of
Variable this Certificate as of the Issue
Date: $__________
Date of Pooling and
Servicing Agreement: Class Principal Balance of all
October 1, 2000 the Class H Certificates as of
the Issue Date: $11,122,460
Commencement Date: October 1, 2000
Issue Date: October 27, 2000 Approximate Aggregate unpaid
principal balance of the Mortgage
First Distribution Date: Pool as of the Commencement Date,
November 15, 2000 after deducting payments of
principal due on or before such
Master Servicer: date (the "Initial Pool
ORIX Real Estate Capital Markets, LLC Balance"): $889,004,533
Special Servicer: Trustee and REMIC Administrator:
Lennar Partners, Inc. Wells Fargo Bank Minnesota, N.A.
Mortgage Loan Sellers:
Bank of America, N.A.
HVB Realty Capital Inc.
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 BANC OF
AMERICA COMMERCIAL MORTGAGE INC., BANK OF AMERICA, N.A., HVB REALTY CAPITAL
INC., WELLS FARGO BANK MINNESOTA, N.A., ORIX REAL ESTATE CAPITAL MARKETS,
LLC, LENNAR PARTNERS, INC. OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER
THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (I) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR A GOVERNMENTAL PLAN
(AS DEFINED IN SECTION 3(32) OF ERISA) SUBJECT TO ANY FEDERAL, STATE OR LOCAL
LAW ("SIMILAR LAW") WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING
PROVISIONS OF ERISA OR THE CODE (EACH A "PLAN") OR (II) A PERSON ACTING ON
BEHALF OF OR USING THE ASSETS OF ANY SUCH PLAN (INCLUDING AN ENTITY WHOSE
UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF INVESTMENT IN THE ENTITY BY
SUCH PLAN AND THE APPLICATION OF DEPARTMENT OF LABOR REGULATION SS. 2510.3-101),
OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER
CIRCUMSTANCES WHEREBY THE PURCHASE AND HOLDING OF SUBORDINATE CERTIFICATES BY
SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE PROHIBITED TRANSACTION
PROVISIONS OF ERISA AND THE CODE UNDER PROHIBITED TRANSACTION CLASS EXEMPTION
95-60 OR (B) IF SUCH CERTIFICATE IS PRESENTED FOR REGISTRATION IN THE NAME OF A
PERSON DESCRIBED IN CLAUSES (I) OR (II) ABOVE, AN OPINION OF COUNSEL IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR TO THE
EFFECT THAT SUCH ACQUISITION AND HOLDING OF SUCH CERTIFICATE BY SUCH PROPOSED
PURCHASER OR TRANSFEREE WILL NOT RESULT IN THE ASSETS OF THE TRUST FUND BEING
DEEMED TO BE "PLAN ASSETS" AND SUBJECT TO THE FIDUCIARY RESPONSIBILITY
PROVISIONS OF ERISA, THE PROHIBITED TRANSACTION PROVISIONS OF THE CODE OR THE
PROVISIONS OF ANY SIMILAR LAW, WILL NOT CONSTITUTE OR RESULT IN A "PROHIBITED
TRANSACTION" WITHIN THE MEANING OF ERISA, SECTION 4975 OF THE CODE OR ANY
SIMILAR LAW, AND WILL NOT SUBJECT THE TRUSTEE, THE CERTIFICATE REGISTRAR, THE
MASTER SERVICER, THE SPECIAL SERVICER, THE PLACEMENT AGENT OR THE DEPOSITOR TO
ANY OBLIGATION OR LIABILITY (INCLUDING OBLIGATIONS OR LIABILITIES UNDER ERISA,
SECTION 4975 OF THE CODE OR ANY SUCH SIMILAR LAW) IN ADDITION TO THOSE SET FORTH
IN THE AGREEMENT. THE TRANSFEREE OF A BENEFICIAL INTEREST IN A CERTIFICATE THAT
IS A BOOK-ENTRY CERTIFICATE SHALL BE DEEMED TO REPRESENT THAT IT IS NOT A PERSON
DESCRIBED IN CLAUSES (I) OR (II) ABOVE.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR INTEREST"
IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF OF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
principal balance of this Certificate (its "Certificate Principal Balance") as
of the Issue Date by the aggregate principal balance of all the Certificates of
the same Class as this Certificate (their "Class Principal Balance") as of the
Issue Date) in that certain beneficial ownership interest in the Trust Fund
evidenced by all the Certificates of the same Class as this Certificate. The
Trust Fund was created and the Certificates were issued pursuant to an Amended
and Restated Pooling and Servicing Agreement, dated as specified above (the
"Agreement"), among Banc of America Commercial Mortgage Inc., as Depositor, and
the Mortgage Loan Sellers, 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 15th day of each month or, if such 15th 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 Sellers, 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 Sellers, 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 Sellers) 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 Sellers, 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
Sellers, 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 IIU 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.
Wells Fargo Bank Minnesota, N.A.,
as Trustee
By:_______________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class H Certificates referred to in the
within-mentioned Agreement.
Dated:
Wells Fargo Bank Minnesota, N.A.,
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-11
FORM OF CLASS J CERTIFICATE
CLASS J COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2000-2
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
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Pass-Through Rate: Certificate Principal Balance of
Variable this Certificate as of the Issue
Date: $__________
Date of Pooling and Servicing
Agreement: September 1, 2000 Class Principal Balance of all
the Class J Certificates as of
Cut-off Date: September 1, 2000 the Issue Date: $34,479,629
Issue Date: September 22, 2000 Approximate Aggregate unpaid
principal balance of the Mortgage
First Distribution Date: Pool as of the Cut-off Date,
October 16, 2000 after deducting payments of
principal due on or before such
Master Servicer: date (the "Initial Pool
ORIX Real Estate Capital Markets, LLC Balance"): $889,796,853
Special Servicer: Trustee and REMIC Administrator:
Lennar Partners, Inc. Wells Fargo Bank Minnesota, N.A.
Mortgage Loan Sellers:
Bank of America, N.A.
HVB Realty Capital Inc.
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 BANC OF
AMERICA COMMERCIAL MORTGAGE INC., BANK OF AMERICA, N.A., HVB REALTY CAPITAL
INC., WELLS FARGO BANK MINNESOTA, N.A., ORIX REAL ESTATE CAPITAL MARKETS,
LLC, LENNAR PARTNERS, INC. OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER
THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (I) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR A GOVERNMENTAL PLAN
(AS DEFINED IN SECTION 3(32) OF ERISA) SUBJECT TO ANY FEDERAL, STATE OR LOCAL
LAW ("SIMILAR LAW") WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING
PROVISIONS OF ERISA OR THE CODE (EACH A "PLAN") OR (II) A PERSON ACTING ON
BEHALF OF OR USING THE ASSETS OF ANY SUCH PLAN (INCLUDING AN ENTITY WHOSE
UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF INVESTMENT IN THE ENTITY BY
SUCH PLAN AND THE APPLICATION OF DEPARTMENT OF LABOR REGULATION SS. 2510.3-101),
OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER
CIRCUMSTANCES WHEREBY THE PURCHASE AND HOLDING OF SUBORDINATE CERTIFICATES BY
SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE PROHIBITED TRANSACTION
PROVISIONS OF ERISA AND THE CODE UNDER PROHIBITED TRANSACTION CLASS EXEMPTION
95-60 OR (B) IF SUCH CERTIFICATE IS PRESENTED FOR REGISTRATION IN THE NAME OF A
PERSON DESCRIBED IN CLAUSES (I) OR (II) ABOVE, AN OPINION OF COUNSEL IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR TO THE
EFFECT THAT SUCH ACQUISITION AND HOLDING OF SUCH CERTIFICATE BY SUCH PROPOSED
PURCHASER OR TRANSFEREE WILL NOT RESULT IN THE ASSETS OF THE TRUST FUND BEING
DEEMED TO BE "PLAN ASSETS" AND SUBJECT TO THE FIDUCIARY RESPONSIBILITY
PROVISIONS OF ERISA, THE PROHIBITED TRANSACTION PROVISIONS OF THE CODE OR THE
PROVISIONS OF ANY SIMILAR LAW, WILL NOT CONSTITUTE OR RESULT IN A "PROHIBITED
TRANSACTION" WITHIN THE MEANING OF ERISA, SECTION 4975 OF THE CODE OR ANY
SIMILAR LAW, AND WILL NOT SUBJECT THE TRUSTEE, THE CERTIFICATE REGISTRAR, THE
MASTER SERVICER, THE SPECIAL SERVICER, THE PLACEMENT AGENT OR THE DEPOSITOR TO
ANY OBLIGATION OR LIABILITY (INCLUDING OBLIGATIONS OR LIABILITIES UNDER ERISA,
SECTION 4975 OF THE CODE OR ANY SUCH SIMILAR LAW) IN ADDITION TO THOSE SET FORTH
IN THE AGREEMENT. THE TRANSFEREE OF A BENEFICIAL INTEREST IN A CERTIFICATE THAT
IS A BOOK-ENTRY CERTIFICATE SHALL BE DEEMED TO REPRESENT THAT IT IS NOT A PERSON
DESCRIBED IN CLAUSES (I) OR (II) ABOVE.
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 Banc
of America Commercial Mortgage Inc., as Depositor, and the Mortgage Loan
Sellers, 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 15th day of each month or, if such 15th 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 Sellers, 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 Sellers, 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 Sellers) 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 Sellers, 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
Sellers, 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.
Wells Fargo Bank Minnesota, N.A.,
as Trustee
By:_______________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class J Certificates referred to in the
within-mentioned Agreement.
Dated:
Wells Fargo Bank Minnesota, N.A.,
as Certificate Registrar
By:_______________________________________
Authorized Officer
<PAGE>
SCHEDULE A
<TABLE>
<CAPTION>
CERTIFICATE BALANCE OF DEFINITIVE
CERTIFICATES EXCHANGED OR TRANSFERRED
FOR, OR ISSUED IN EXCHANGE FOR OR UPON
TRANSFER OF, AN INTEREST IN THIS BOOK- REMAINING PRINCIPAL AMOUNT OF NOTATION
DATE ENTRY CERTIFICATE BOOK-ENTRY CERTIFICATE MADE BY
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<S> <C> <C> <C>
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</TABLE>
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _____________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee) the beneficial ownership interest in the Trust Fund evidenced by the
within Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to the above
named assignee and delivery of such Commercial Mortgage Pass-Through Certificate
to the following address: _____________________________________________________
_____________________________________________________________________________.
Dated:
-----------------------------------------
Signature by or on behalf of Assignor
-----------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to _________________________________
for the account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and notices
should be mailed to _______________________________________________.
This information is provided by ___________________________________,
the assignee named above, or _________________________________________, as its
agent.
<PAGE>
EXHIBIT A-12
FORM OF CLASS K CERTIFICATE
CLASS K COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2000-2
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
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Pass-Through Rate: Certificate Principal Balance of
Variable this Certificate as of the Issue
Date: $__________
Date of Pooling and Servicing
Agreement: September 1, 2000 Class Principal Balance of all
the Class K Certificates as of
Cut-off Date: September 1, 2000 the Issue Date: $5,561,230
Issue Date: September 22, 2000 Approximate Aggregate unpaid
principal balance of the Mortgage
First Distribution Date: Pool as of the Cut-off Date,
October 16, 2000 after deducting payments of
principal due on or before such
Master Servicer: date (the "Initial Pool
ORIX Real Estate Capital Markets, LLC Balance"): $889,796,853
Special Servicer: Trustee and REMIC Administrator:
Lennar Partners, Inc. Wells Fargo Bank Minnesota, N.A.
Mortgage Loan Sellers:
Bank of America, N.A.
HVB Realty Capital Inc.
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 BANC OF
AMERICA COMMERCIAL MORTGAGE INC., BANK OF AMERICA, N.A., HVB REALTY CAPITAL
INC., WELLS FARGO BANK MINNESOTA, N.A., ORIX REAL ESTATE CAPITAL MARKETS,
LLC, LENNAR PARTNERS, INC. OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER
THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (I) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR A GOVERNMENTAL PLAN
(AS DEFINED IN SECTION 3(32) OF ERISA) SUBJECT TO ANY FEDERAL, STATE OR LOCAL
LAW ("SIMILAR LAW") WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING
PROVISIONS OF ERISA OR THE CODE (EACH A "PLAN") OR (II) A PERSON ACTING ON
BEHALF OF OR USING THE ASSETS OF ANY SUCH PLAN (INCLUDING AN ENTITY WHOSE
UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF INVESTMENT IN THE ENTITY BY
SUCH PLAN AND THE APPLICATION OF DEPARTMENT OF LABOR REGULATION SS. 2510.3-101),
OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER
CIRCUMSTANCES WHEREBY THE PURCHASE AND HOLDING OF SUBORDINATE CERTIFICATES BY
SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE PROHIBITED TRANSACTION
PROVISIONS OF ERISA AND THE CODE UNDER PROHIBITED TRANSACTION CLASS EXEMPTION
95-60 OR (B) IF SUCH CERTIFICATE IS PRESENTED FOR REGISTRATION IN THE NAME OF A
PERSON DESCRIBED IN CLAUSES (I) OR (II) ABOVE, AN OPINION OF COUNSEL IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR TO THE
EFFECT THAT SUCH ACQUISITION AND HOLDING OF SUCH CERTIFICATE BY SUCH PROPOSED
PURCHASER OR TRANSFEREE WILL NOT RESULT IN THE ASSETS OF THE TRUST FUND BEING
DEEMED TO BE "PLAN ASSETS" AND SUBJECT TO THE FIDUCIARY RESPONSIBILITY
PROVISIONS OF ERISA, THE PROHIBITED TRANSACTION PROVISIONS OF THE CODE OR THE
PROVISIONS OF ANY SIMILAR LAW, WILL NOT CONSTITUTE OR RESULT IN A "PROHIBITED
TRANSACTION" WITHIN THE MEANING OF ERISA, SECTION 4975 OF THE CODE OR ANY
SIMILAR LAW, AND WILL NOT SUBJECT THE TRUSTEE, THE CERTIFICATE REGISTRAR, THE
MASTER SERVICER, THE SPECIAL SERVICER, THE PLACEMENT AGENT OR THE DEPOSITOR TO
ANY OBLIGATION OR LIABILITY (INCLUDING OBLIGATIONS OR LIABILITIES UNDER ERISA,
SECTION 4975 OF THE CODE OR ANY SUCH SIMILAR LAW) IN ADDITION TO THOSE SET FORTH
IN THE AGREEMENT. THE TRANSFEREE OF A BENEFICIAL INTEREST IN A CERTIFICATE THAT
IS A BOOK-ENTRY CERTIFICATE SHALL BE DEEMED TO REPRESENT THAT IT IS NOT A PERSON
DESCRIBED IN CLAUSES (I) OR (II) ABOVE.
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 Banc
of America Commercial Mortgage Inc., as Depositor, and the Mortgage Loan
Sellers, 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 15th day of each month or, if such 15th 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 Sellers, 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 Sellers, 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 Sellers) 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 Sellers, 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
Sellers, 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.
Wells Fargo Bank Minnesota, N.A.,
as Trustee
By:_______________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class K Certificates referred to in the
within-mentioned Agreement.
Dated:
Wells Fargo Bank Minnesota, N.A.,
as Certificate Registrar
By:_______________________________________
Authorized Officer
<PAGE>
SCHEDULE A
<TABLE>
<CAPTION>
CERTIFICATE BALANCE OF DEFINITIVE
CERTIFICATES EXCHANGED OR TRANSFERRED
FOR, OR ISSUED IN EXCHANGE FOR OR UPON
TRANSFER OF, AN INTEREST IN THIS BOOK- REMAINING PRINCIPAL AMOUNT OF NOTATION
DATE ENTRY CERTIFICATE BOOK-ENTRY CERTIFICATE MADE BY
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<S> <C> <C> <C>
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</TABLE>
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _____________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee) the beneficial ownership interest in the Trust Fund evidenced by the
within Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to the above
named assignee and delivery of such Commercial Mortgage Pass-Through Certificate
to the following address: _____________________________________________________
_____________________________________________________________________________.
Dated:
-----------------------------------------
Signature by or on behalf of Assignor
-----------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to _________________________________
for the account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and notices
should be mailed to _______________________________________________.
This information is provided by ___________________________________,
the assignee named above, or _________________________________________, as its
agent.
<PAGE>
EXHIBIT A-13
FORM OF CLASS L CERTIFICATE
CLASS L COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2000-2
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
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Pass-Through Rate: Certificate Principal Balance of
Variable this Certificate as of the Issue
Date: $__________
Date of Pooling and Servicing
Agreement: September 1, 2000 Class Principal Balance of all
the Class L Certificates as of
Cut-off Date: September 1, 2000 the Issue Date: $6,673,476
Issue Date: September 22, 2000 Approximate Aggregate unpaid
principal balance of the Mortgage
First Distribution Date: Pool as of the Cut-off Date,
October 15, 2000 after deducting payments of
principal due on or before such
Master Servicer: date (the "Initial Pool
ORIX Real Estate Capital Markets, LLC Balance"): $889,796,853
Special Servicer: Trustee and REMIC Administrator:
Lennar Partners, Inc. Wells Fargo Bank Minnesota, N.A.
Mortgage Loan Sellers:
Bank of America, N.A.
HVB Realty Capital Inc.
Certificate No. L-__ 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 BANC OF
AMERICA COMMERCIAL MORTGAGE INC., BANK OF AMERICA, N.A., HVB REALTY CAPITAL
INC., WELLS FARGO BANK MINNESOTA, N.A., ORIX REAL ESTATE CAPITAL MARKETS,
LLC, LENNAR PARTNERS, INC. OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER
THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS IS SUBORDINATE TO
THE ONE OR MORE CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE EXTENT
PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE AGREEMENT REFERRED TO HEREIN.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF RULE 501 (A)(1), (2), (3) OR (7) OF REGULATION D
UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM THE REGISTRATION
REQUIREMENTS UNDER THE SECURITIES ACT, OR (D) PURSUANT TO ANOTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT IN
EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY THE TRANSFEROR TO
THE TRUSTEE OF A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE LAST PAGE
OF THIS CERTIFICATE.
THIS CERTIFICATE 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 Banc
of America Commercial Mortgage Inc., as Depositor, and the Mortgage Loan
Sellers, 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 15th day of each month or, if such 15th 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 Sellers, 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 Sellers, 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 Sellers) 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 Sellers, 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
Sellers, 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.
Wells Fargo Bank Minnesota, N.A.,
as Trustee
By:_______________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class L Certificates referred to in the
within-mentioned Agreement.
Dated:
Wells Fargo Bank Minnesota, N.A.,
as Certificate Registrar
By:_______________________________________
Authorized Officer
<PAGE>
SCHEDULE A
<TABLE>
<CAPTION>
CERTIFICATE BALANCE OF DEFINITIVE
CERTIFICATES EXCHANGED OR TRANSFERRED
FOR, OR ISSUED IN EXCHANGE FOR OR UPON
TRANSFER OF, AN INTEREST IN THIS BOOK- REMAINING PRINCIPAL AMOUNT OF NOTATION
DATE ENTRY CERTIFICATE BOOK-ENTRY CERTIFICATE MADE BY
------------------ ----------------------------------------- ----------------------------- ----------------------
<S> <C> <C> <C>
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</TABLE>
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _____________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee) the beneficial ownership interest in the Trust Fund evidenced by the
within Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to the above
named assignee and delivery of such Commercial Mortgage Pass-Through Certificate
to the following address: _____________________________________________________
_____________________________________________________________________________.
Dated:
-----------------------------------------
Signature by or on behalf of Assignor
-----------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to _________________________________
for the account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and notices
should be mailed to _______________________________________________.
This information is provided by ___________________________________,
the assignee named above, or _________________________________________, as its
agent.
<PAGE>
EXHIBIT A-14
FORM OF CLASS M CERTIFICATE
CLASS M COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2000-2
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
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Pass-Through Rate: Certificate Principal Balance of
Variable this Certificate as of the Issue
Date: $__________
Date of Pooling and Servicing
Agreement: September 1, 2000 Class Principal Balance of all
the Class M Certificates as of
Cut-off Date: September 1, 2000 the Issue Date: $2,224,492
Issue Date: September 22, 2000 Approximate Aggregate unpaid
principal balance of the Mortgage
First Distribution Date: Pool as of the Cut-off Date,
October 15, 2000 after deducting payments of
principal due on or before such
Master Servicer: date (the "Initial Pool
ORIX Real Estate Capital Markets, LLC Balance"): $889,796,853
Special Servicer: Trustee and REMIC Administrator:
Lennar Partners, Inc. Wells Fargo Bank Minnesota, N.A.
Mortgage Loan Sellers:
Bank of America, N.A.
HVB Realty Capital Inc.
Certificate No. M-__ 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 BANC OF
AMERICA COMMERCIAL MORTGAGE INC., BANK OF AMERICA, N.A., HVB REALTY CAPITAL
INC., WELLS FARGO BANK MINNESOTA, N.A., ORIX REAL ESTATE CAPITAL MARKETS,
LLC, LENNAR PARTNERS, INC. OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER
THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS IS SUBORDINATE TO
THE ONE OR MORE CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE EXTENT
PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE AGREEMENT REFERRED TO HEREIN.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF RULE 501 (A)(1), (2), (3) OR (7) OF REGULATION D
UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM THE REGISTRATION
REQUIREMENTS UNDER THE SECURITIES ACT, OR (D) PURSUANT TO ANOTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT IN
EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY THE TRANSFEROR TO
THE TRUSTEE OF A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE LAST PAGE
OF THIS CERTIFICATE.
THIS CERTIFICATE 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 Banc
of America Commercial Mortgage Inc., as Depositor, and the Mortgage Loan
Sellers, 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 15th day of each month or, if such 15th 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 Sellers, 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 Sellers, 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 Sellers) 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 Sellers, 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
Sellers, 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.
Wells Fargo Bank Minnesota, N.A.,
as Trustee
By:_______________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class M Certificates referred to in the
within-mentioned Agreement.
Dated:
Wells Fargo Bank Minnesota, N.A.,
as Certificate Registrar
By:_______________________________________
Authorized Officer
<PAGE>
SCHEDULE A
<TABLE>
<CAPTION>
CERTIFICATE BALANCE OF DEFINITIVE
CERTIFICATES EXCHANGED OR TRANSFERRED
FOR, OR ISSUED IN EXCHANGE FOR OR UPON
TRANSFER OF, AN INTEREST IN THIS BOOK- REMAINING PRINCIPAL AMOUNT OF NOTATION
DATE ENTRY CERTIFICATE BOOK-ENTRY CERTIFICATE MADE BY
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<S> <C> <C> <C>
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</TABLE>
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _____________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee) the beneficial ownership interest in the Trust Fund evidenced by the
within Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to the above
named assignee and delivery of such Commercial Mortgage Pass-Through Certificate
to the following address: _____________________________________________________
_____________________________________________________________________________.
Dated:
-----------------------------------------
Signature by or on behalf of Assignor
-----------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to _________________________________
for the account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and notices
should be mailed to _______________________________________________.
This information is provided by ___________________________________,
the assignee named above, or _________________________________________, as its
agent.
<PAGE>
EXHIBIT A-15
FORM OF CLASS N CERTIFICATE
CLASS N COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2000-2
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
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Pass-Through Rate: Certificate Principal Balance of
Variable this Certificate as of the Issue
Date: $__________
Date of Pooling and Servicing
Agreement: September 1, 2000 Class Principal Balance of all
the Class N Certificates as of
Cut-off Date: September 1, 2000 the Issue Date: $6,673,477
Issue Date: September 22, 2000 Approximate Aggregate unpaid
principal balance of the Mortgage
First Distribution Date: Pool as of the Cut-off Date,
October 16, 2000 after deducting payments of
principal due on or before such
Master Servicer: date (the "Initial Pool
ORIX Real Estate Capital Markets, LLC Balance"): $889,796,853
Special Servicer: Trustee and REMIC Administrator:
Lennar Partners, Inc. Wells Fargo Bank Minnesota, N.A.
Mortgage Loan Sellers:
Bank of America, N.A.
HVB Realty Capital Inc.
Certificate No. N-__ 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 BANC OF
AMERICA COMMERCIAL MORTGAGE INC., BANK OF AMERICA, N.A., HVB REALTY CAPITAL
INC., WELLS FARGO BANK MINNESOTA, N.A., ORIX REAL ESTATE CAPITAL MARKETS,
LLC, LENNAR PARTNERS, INC. OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER
THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS IS SUBORDINATE TO
THE ONE OR MORE CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE EXTENT
PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE AGREEMENT REFERRED TO HEREIN.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF RULE 501 (A)(1), (2), (3) OR (7) OF REGULATION D
UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM THE REGISTRATION
REQUIREMENTS UNDER THE SECURITIES ACT, OR (D) PURSUANT TO ANOTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT IN
EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY THE TRANSFEROR TO
THE TRUSTEE OF A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE LAST PAGE
OF THIS CERTIFICATE.
THIS CERTIFICATE 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 Banc
of America Commercial Mortgage Inc., as Depositor, and the Mortgage Loan
Sellers, 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 15th day of each month or, if such 15th 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 Sellers, 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 Sellers, 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 Sellers) 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 Sellers, 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
Sellers, 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.
Wells Fargo Bank Minnesota, N.A.,
as Trustee
By:_______________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class N Certificates referred to in the
within-mentioned Agreement.
Dated:
Wells Fargo Bank Minnesota, N.A.,
as Certificate Registrar
By:_______________________________________
Authorized Officer
<PAGE>
EXHIBIT A-16
FORM OF CLASS O CERTIFICATE
CLASS O COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2000-2
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
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Pass-Through Rate: Certificate Principal Balance of
Variable this Certificate as of the Issue
Date: $__________
Date of Pooling and Servicing
Agreement: September 1, 2000 Class Principal Balance of all
the Class O Certificates as of
Cut-off Date: September 1, 2000 the Issue Date: $4,448,984
Issue Date: September 22, 2000 Approximate Aggregate unpaid
principal balance of the Mortgage
First Distribution Date: Pool as of the Cut-off Date,
October 16, 2000 after deducting payments of
principal due on or before such
Master Servicer: date (the "Initial Pool
ORIX Real Estate Capital Markets, LLC Balance"): $889,796,853
Special Servicer: Trustee and REMIC Administrator:
Lennar Partners, Inc. Wells Fargo Bank Minnesota, N.A.
Mortgage Loan Sellers:
Bank of America, N.A.
HVB Realty Capital Inc.
Certificate No. O-__ 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 BANC OF
AMERICA COMMERCIAL MORTGAGE INC., BANK OF AMERICA, N.A., HVB REALTY CAPITAL
INC., WELLS FARGO BANK MINNESOTA, N.A., ORIX REAL ESTATE CAPITAL MARKETS,
LLC, LENNAR PARTNERS, INC. OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER
THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS IS SUBORDINATE TO
THE ONE OR MORE CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE EXTENT
PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE AGREEMENT REFERRED TO HEREIN.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF RULE 501 (A)(1), (2), (3) OR (7) OF REGULATION D
UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM THE REGISTRATION
REQUIREMENTS UNDER THE SECURITIES ACT, OR (D) PURSUANT TO ANOTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT IN
EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY THE TRANSFEROR TO
THE TRUSTEE OF A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE LAST PAGE
OF THIS CERTIFICATE.
THIS CERTIFICATE 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 Banc
of America Commercial Mortgage Inc., as Depositor, and the Mortgage Loan
Sellers, 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 15th day of each month or, if such 15th 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 Sellers, 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 Sellers, 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 Sellers) 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 Sellers, 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
Sellers, 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.
Wells Fargo Bank Minnesota, N.A.,
as Trustee
By:_______________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class O Certificates referred to in the
within-mentioned Agreement.
Dated:
Wells Fargo Bank Minnesota, N.A.,
as Certificate Registrar
By:_______________________________________
Authorized Officer
<PAGE>
EXHIBIT A-17
FORM OF CLASS P CERTIFICATE
CLASS P COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2000-2
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
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Pass-Through Rate: Certificate Principal Balance of
Variable this Certificate as of the Issue
Date: $__________
Date of Pooling and Servicing
Agreement: September 1, 2000 Class Principal Balance of all
the Class P Certificates as of
Cut-off Date: September 1, 2000 the Issue Date: $24,469,414
Issue Date: September 22, 2000 Approximate Aggregate unpaid
principal balance of the Mortgage
First Distribution Date: Pool as of the Cut-off Date,
October 16, 2000 after deducting payments of
principal due on or before such
Master Servicer: date (the "Initial Pool
ORIX Real Estate Capital Markets, LLC Balance"): $889,796,853
Special Servicer: Trustee and REMIC Administrator:
Lennar Partners, Inc. Wells Fargo Bank Minnesota, N.A.
Mortgage Loan Sellers:
Bank of America, N.A.
HVB Realty Capital Inc.
Certificate No. P-__ 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 BANC OF
AMERICA COMMERCIAL MORTGAGE INC., BANK OF AMERICA, N.A., HVB REALTY CAPITAL
INC., WELLS FARGO BANK MINNESOTA, N.A., ORIX REAL ESTATE CAPITAL MARKETS,
LLC, LENNAR PARTNERS, INC. OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER
THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS IS SUBORDINATE TO
THE ONE OR MORE CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE EXTENT
PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE AGREEMENT REFERRED TO HEREIN.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF RULE 501 (A)(1), (2), (3) OR (7) OF REGULATION D
UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM THE REGISTRATION
REQUIREMENTS UNDER THE SECURITIES ACT, OR (D) PURSUANT TO ANOTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT IN
EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY THE TRANSFEROR TO
THE TRUSTEE OF A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE LAST PAGE
OF THIS CERTIFICATE.
THIS CERTIFICATE 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 Banc
of America Commercial Mortgage Inc., as Depositor, and the Mortgage Loan
Sellers, 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 15th day of each month or, if such 15th 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 Sellers, 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 Sellers, 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 Sellers) 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 Sellers, 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
Sellers, 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.
Wells Fargo Bank Minnesota, N.A.,
as Trustee
By:_______________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class P Certificates referred to in the
within-mentioned Agreement.
Dated:
Wells Fargo Bank Minnesota, N.A.,
as Certificate Registrar
By:_______________________________________
Authorized Officer
<PAGE>
SCHEDULE A
<TABLE>
<CAPTION>
CERTIFICATE BALANCE OF DEFINITIVE
CERTIFICATES EXCHANGED OR TRANSFERRED
FOR, OR ISSUED IN EXCHANGE FOR OR UPON
TRANSFER OF, AN INTEREST IN THIS BOOK- REMAINING PRINCIPAL AMOUNT OF NOTATION
DATE ENTRY CERTIFICATE BOOK-ENTRY CERTIFICATE MADE BY
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<S> <C> <C> <C>
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</TABLE>
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _____________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee) the beneficial ownership interest in the Trust Fund evidenced by the
within Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to the above
named assignee and delivery of such Commercial Mortgage Pass-Through Certificate
to the following address: _____________________________________________________
_____________________________________________________________________________.
Dated:
-----------------------------------------
Signature by or on behalf of Assignor
-----------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to _________________________________
for the account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and notices
should be mailed to _______________________________________________.
This information is provided by ___________________________________,
the assignee named above, or _________________________________________, as its
agent.
<PAGE>
EXHIBIT A-18
FORM OF CLASS R-I CERTIFICATE
CLASS R-I COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2000-2
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
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Date of Pooling and Servicing Certificate No. R-I-___
Agreement: September 1, 2000
Percentage Interest evidenced by
Cut-off Date: September 1, 2000 this Certificate in the related
Class: ____%
Issue Date: September 22, 2000
Approximate Aggregate unpaid
First Distribution Date: principal balance of the Mortgage
October 16, 2000 Pool as of the Cut-off Date,
after deducting payments of
Master Servicer: principal due on or before such
ORIX Real Estate Capital Markets, LLC date (the "Initial Pool
Balance"): $889,796,853
Special Servicer:
Lennar Partners, Inc. Trustee and REMIC Administrator:
Wells Fargo Bank Minnesota, N.A.
Mortgage Loan Sellers:
Bank of America, N.A.
HVB Realty Capital Inc.
<PAGE>
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN BANC OF
AMERICA COMMERCIAL MORTGAGE INC., BANK OF AMERICA, N.A., HVB REALTY CAPITAL
INC., WELLS FARGO BANK MINNESOTA, N.A., ORIX REAL ESTATE CAPITAL MARKETS,
LLC, LENNAR PARTNERS, INC. OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER
THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS, IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE AGREEMENT REFERRED TO HEREIN.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF RULE 501 (A)(1), (2), (3) OR (7) OF REGULATION D
UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM THE REGISTRATION
REQUIREMENTS UNDER THE SECURITIES ACT, OR (D) PURSUANT TO ANOTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT IN
EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY THE TRANSFEROR TO
THE TRUSTEE OF A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE LAST PAGE
OF THIS CERTIFICATE.
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 Banc of America Commercial
Mortgage Inc., as Depositor, and the Mortgage Loan Sellers, 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 15th day of each month or, if such 15th 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 Sellers, 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 Sellers, 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 Sellers) 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 Sellers, 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
Sellers, 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.
Wells Fargo Bank Minnesota, N.A.,
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:
Wells Fargo Bank Minnesota, N.A.,
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-II CERTIFICATE
CLASS R-II COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2000-2
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
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Date of Pooling and Servicing Certificate No. R-II-__
Agreement: September 1, 2000
Cut-off Date: September 1, 2000 Percentage Interest evidenced by
this Certificate in the related
Issue Date: September 22, 2000 Class: ____%
First Distribution Date: Approximate Aggregate unpaid
October 16, 2000 principal balance of the Mortgage
Pool as of the Cut-off Date,
Master Servicer: after deducting payments of
ORIX Real Estate Capital Markets, LLC principal due on or before such
date (the "Initial Pool
Balance"): $889,796,853
Special Servicer: Trustee and REMIC Administrator:
Lennar Partners, Inc. Wells Fargo Bank Minnesota, N.A.
Mortgage Loan Sellers:
Bank of America, N.A.
HVB Realty Capital Inc.
<PAGE>
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN BANC OF
AMERICA COMMERCIAL MORTGAGE INC., BANK OF AMERICA, N.A., HVB REALTY CAPITAL
INC., WELLS FARGO BANK MINNESOTA, N.A., ORIX REAL ESTATE CAPITAL MARKETS,
LLC, LENNAR PARTNERS, INC. OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER
THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS, IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE MAY NOT BE PURCHASED 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 Banc of America Commercial
Mortgage Inc., as Depositor, and the Mortgage Loan Sellers, 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 15th day of each month or, if such 15th 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 Sellers, 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 Sellers, 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 Sellers) 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 Sellers, 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
Sellers, 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.
Wells Fargo Bank Minnesota, N.A.,
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:
Wells Fargo Bank Minnesota, N.A.,
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-IIU CERTIFICATE
CLASS R-IIU COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2000-2
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
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Date of Pooling and Servicing Certificate No. R-IIU-__
Agreement: October 1, 2000
Percentage Interest evidenced by
Commencement Date: October 1, 2000 this Certificate in the related
Class: ____%
Issue Date: October 27, 2000
Approximate Aggregate unpaid
First Distribution Date: principal balance of the
November 15, 2000 Mortgage Pool as of the
Commencement Date, after
Master Servicer: deducting payments of principal
ORIX Real Estate Capital Markets, LLC due on or before such date (the
"Initial Pool Balance"):
$889,004,533
Special Servicer: Trustee and REMIC Administrator:
Lennar Partners, Inc. Wells Fargo Bank Minnesota, N.A.
Mortgage Loan Sellers:
Bank of America, N.A.
HVB Realty Capital Inc.
<PAGE>
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN BANC OF
AMERICA COMMERCIAL MORTGAGE INC., BANK OF AMERICA, N.A., HVB REALTY CAPITAL
INC., WELLS FARGO BANK MINNESOTA, N.A., ORIX REAL ESTATE CAPITAL MARKETS,
LLC, LENNAR PARTNERS, INC. OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER
THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS, IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE MAY NOT BE PURCHASED 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 Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Certificate (as specified above) in that
certain beneficial ownership interest in the Trust Fund evidenced by all the
Certificates of the same Class as this Certificate. The Trust Fund was created
and the Certificates were issued pursuant to an Amended and Restated Pooling and
Servicing Agreement, dated as specified above (the "Agreement"), among Banc of
America Commercial Mortgage Inc., as Depositor, and the Mortgage Loan Sellers,
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 15th day of each month or, if such 15th 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.
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 Sellers, 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 Sellers, 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 Sellers) 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 Sellers, 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
Sellers, 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 IIU 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.
Wells Fargo Bank Minnesota, N.A.,
as Trustee
By:_______________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class R-IIU Certificates referred to in the
within-mentioned Agreement.
Dated:
Wells Fargo Bank Minnesota, N.A.,
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-III CERTIFICATE
CLASS R-III COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2000-2
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
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Date of Pooling and Servicing Certificate No. R-III-__
Agreement: October 1, 2000
Commencement Date: October 1, 2000 Percentage Interest evidenced by
this Certificate in the related
Issue Date: October 27, 2000 Class: _____%
First Distribution Date: Approximate Aggregate unpaid
November 15, 2000 principal balance of the
Mortgage Pool as of the
Master Servicer: Commencement Date, after
ORIX Real Estate Capital Markets, LLC deducting payments of principal
due on or before such date (the
"Initial Pool Balance"):
$889,004,533
Special Servicer:
Lennar Partners, Inc. Trustee and REMIC Administrator:
Wells Fargo Bank Minnesota, N.A.
Mortgage Loan Sellers
Bank of America, N.A.
HVB Realty Capital Inc.
<PAGE>
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN BANC OF
AMERICA COMMERCIAL MORTGAGE INC., BANK OF AMERICA, N.A., HVB REALTY CAPITAL
INC., WELLS FARGO BANK MINNESOTA, N.A., ORIX REAL ESTATE CAPITAL MARKETS,
LLC, LENNAR PARTNERS, INC. OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER
THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS, IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE AGREEMENT REFERRED TO HEREIN.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF RULE 501 (A)(1), (2), (3) OR (7) OF REGULATION D
UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM THE REGISTRATION
REQUIREMENTS UNDER THE SECURITIES ACT, OR (D) PURSUANT TO ANOTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT IN
EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY THE TRANSFEROR TO
THE TRUSTEE OF A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE LAST PAGE
OF THIS CERTIFICATE.
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 Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Certificate (as specified above) in that
certain beneficial ownership interest in the Trust Fund evidenced by all the
Certificates of the same Class as this Certificate. The Trust Fund was created
and the Certificates were issued pursuant to an Amended and Restated Pooling and
Servicing Agreement, dated as specified above (the "Agreement"), among Banc of
America Commercial Mortgage Inc., as Depositor, and the Mortgage Loan Sellers,
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 15th day of each month or, if such 15th 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.
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 Sellers, 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 Sellers, 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 Sellers) 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 Sellers, 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
Sellers, 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 IIU 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.
Wells Fargo Bank Minnesota, N.A.,
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:
Wells Fargo Bank Minnesota, N.A.,
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 V CERTIFICATE
CLASS V COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2000-2
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
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Date of Pooling and Servicing Percentage Interest evidenced by this
Agreement: September 1, 2000 Certificate in the related Class: 100%
Cut-off Date: September 1, 2000 Approximate Aggregate unpaid principal
balance of the Mortgage Pool as of the
Issue Date: September 22, 2000 Cut-off Date, after deducting payments
of principal due on or before such
First Distribution Date: date (the "Initial Pool Balance"):
October 16, 2000 $889,796,853
Master Servicer: Trustee and REMIC Administrator:
ORIX Real Estate Capital Markets, LLC Wells Fargo Bank Minnesota, N.A.
Special Servicer:
Lennar Partners, Inc. Mortgage Loan Sellers:
Bank of America, N.A.
Certificate No. V- HVB Realty Capital Inc.
<PAGE>
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN BANC OF
AMERICA COMMERCIAL MORTGAGE INC., BANK OF AMERICA, N.A., HVB REALTY CAPITAL
INC., WELLS FARGO BANK MINNESOTA, N.A., ORIX REAL ESTATE CAPITAL MARKETS,
LLC, LENNAR PARTNERS, INC. OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER
THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (I) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR A GOVERNMENTAL PLAN
(AS DEFINED IN SECTION 3(32) OF ERISA) SUBJECT TO ANY FEDERAL, STATE OR LOCAL
LAW ("SIMILAR LAW") WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING
PROVISIONS OF ERISA OR THE CODE (EACH A "PLAN") OR (II) A PERSON ACTING ON
BEHALF OF OR USING THE ASSETS OF ANY SUCH PLAN (INCLUDING AN ENTITY WHOSE
UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF INVESTMENT IN THE ENTITY BY
SUCH PLAN AND THE APPLICATION OF DEPARTMENT OF LABOR REGULATION SS. 2510.3-101),
OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER
CIRCUMSTANCES WHEREBY THE PURCHASE AND HOLDING OF SUBORDINATE CERTIFICATES BY
SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE PROHIBITED TRANSACTION
PROVISIONS OF ERISA AND THE CODE UNDER PROHIBITED TRANSACTION CLASS EXEMPTION
95-60 OR (B) IF SUCH CERTIFICATE IS PRESENTED FOR REGISTRATION IN THE NAME OF A
PERSON DESCRIBED IN CLAUSES (I) OR (II) ABOVE, AN OPINION OF COUNSEL IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR TO THE
EFFECT THAT SUCH ACQUISITION AND HOLDING OF SUCH CERTIFICATE BY SUCH PROPOSED
PURCHASER OR TRANSFEREE WILL NOT RESULT IN THE ASSETS OF THE TRUST FUND BEING
DEEMED TO BE "PLAN ASSETS" AND SUBJECT TO THE FIDUCIARY RESPONSIBILITY
PROVISIONS OF ERISA, THE PROHIBITED TRANSACTION PROVISIONS OF THE CODE OR THE
PROVISIONS OF ANY SIMILAR LAW, WILL NOT CONSTITUTE OR RESULT IN A "PROHIBITED
TRANSACTION" WITHIN THE MEANING OF ERISA, SECTION 4975 OF THE CODE OR ANY
SIMILAR LAW, AND WILL NOT SUBJECT THE TRUSTEE, THE CERTIFICATE REGISTRAR, THE
MASTER SERVICER, THE SPECIAL SERVICER, THE PLACEMENT AGENT OR THE DEPOSITOR TO
ANY OBLIGATION OR LIABILITY (INCLUDING OBLIGATIONS OR LIABILITIES UNDER ERISA,
SECTION 4975 OF THE CODE OR ANY SUCH SIMILAR LAW) IN ADDITION TO THOSE SET FORTH
IN THE AGREEMENT. THE TRANSFEREE OF A BENEFICIAL INTEREST IN A CERTIFICATE THAT
IS A BOOK-ENTRY CERTIFICATE SHALL BE DEEMED TO REPRESENT THAT IT IS NOT A PERSON
DESCRIBED IN CLAUSES (I) OR (II) ABOVE.
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.
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 PREPAYMENT PREMIUMS RECEIVED ON THE
MORTGAGE POOL AS PROVIDED IN THE AGREEMENT.
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 Banc
of America Commercial Mortgage Inc., as Depositor, and the Mortgage Loan
Sellers, 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 15th day of each month or, if such 15th 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.
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 Sellers, 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 Sellers, 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 Sellers) 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 Sellers, 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
Sellers, 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.
Wells Fargo Bank Minnesota, N.A.,
as Trustee
By:_______________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class V Certificates referred to in the
within-mentioned Agreement.
Dated:
Wells Fargo Bank Minnesota, N.A.,
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
Wells Fargo Bank Minnesota, N.A.,
Wells Fargo Center
Sixth & Marquette
Minneapolis, MN 55745
Attn: Corporate Trust Services (CMBS) - Banc of America Commercial Mortgage
Inc. 2000-2-MAC # N9303-121
Banc of America Commercial Mortgage Inc.
Bank of America Corporate Center
100 North Tryon Street
Charlotte, North Carolina 28255
Re: Transfer of Banc of America Commercial Mortgage Inc., Commercial
Mortgage Pass-Through Certificates, Series 2000-2
----------------------------------------------------------------
Ladies and Gentlemen:
This letter is delivered pursuant to Section 5.02 of the Amended and
Restated Pooling and Servicing Agreement dated as of October 1, 2000 (the
"Amended and Restated Pooling and Servicing Agreement"), by and among Banc of
America Commercial Mortgage Inc., as Depositor, Bank of America, N.A. and HVB
Realty Capital Inc., as Mortgage Loan Sellers, ORIX Real Estate Capital Markets,
LLC, as Master Servicer, Lennar Partners, Inc., as Special Servicer, and Wells
Fargo Bank Minnesota, N.A., as Trustee on behalf of the holders of Banc of
America Commercial Mortgage Inc., Commercial Mortgage Pass-Through Certificates,
Series 2000-2 (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 Amended and Restated
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
----------
* Purchaser must include one of the following two certifications.
<PAGE>
amended (the "1933 Act")) and has such knowledge and
experience in financial and business matters as to be capable
of evaluating the merits and risks of its investment in the
Certificates, and the Purchaser and any accounts for which it
is acting are each able to bear the economic risk of the
Purchaser's or such account's investment. The Purchaser is
acquiring the Certificates purchased by it for its own account
or for one or more accounts (each of which is an
"institutional accredited investor") as to each of which the
Purchaser exercises sole investment discretion. The Purchaser
hereby undertakes to reimburse the Trust Fund for any costs
incurred by it in connection with this transfer.
[_] The Purchaser is a "qualified institutional buyer" within the
meaning of Rule 144A ("Rule 144A") promulgated under the
Securities Act of 1933, as amended (the "1933 Act") The
Purchaser is aware that the transfer is being made in reliance
on Rule 144A, and the Purchaser has had the opportunity to
obtain the information required to be provided pursuant to
paragraph (d)(4)(i) of Rule 144A.
2. The Purchaser's intention is to acquire the Certificate (a) for
investment for the Purchaser's own account or (b) for resale to (i) "qualified
institutional buyers" in transactions under Rule 144A, and not in any event with
the view to, or for resale in connection with, any distribution thereof or (ii)
to institutional "accredited investors" meeting the requirements of Rule
501(a)(1), (2), (3) or (7) of Regulation D promulgated under the 1933 Act,
pursuant to any other exemption from the registration requirements of the 1933
Act, subject in the case of this clause (ii) to (w) the receipt by the
Certificate Registrar of a letter substantially in the form hereof, (x) the
receipt by the Certificate Registrar of an opinion of counsel acceptable to the
Certificate Registrar that such reoffer, resale, pledge or transfer is in
compliance with the 1933 Act, (y) the receipt by the Certificate Registrar of
such other evidence acceptable to the Certificate Registrar that such reoffer,
resale, pledge or transfer is in compliance with the 1933 Act and other
applicable laws and (z) a written undertaking to reimburse the Trust for any
costs incurred by it in connection with the proposed transfer. The Purchaser
understands that the Certificate (and any subsequent Certificate) has not been
registered under the 1933 Act, by reason of a specified exemption from the
registration provisions of the 1933 Act which depends upon, among other things,
the bona fide nature of the Purchaser's investment intent (or intent to resell
to only certain investors in certain exempted transactions) as expressed herein.
3. The Purchaser has reviewed the Private Placement Memorandum
relating to the Certificates (the "Private Placement Memorandum") and the
agreements and other materials referred to therein and has had the opportunity
to ask questions and receive answers concerning the terms and conditions of the
transactions contemplated by the Private Placement Memorandum.
4. The Purchaser acknowledges that the Certificate (and any
Certificate issued on transfer or exchange thereof) has not been registered or
qualified under the 1933 Act or the securities laws of any State or any other
jurisdiction, and that the Certificate cannot be resold unless it is registered
or qualified thereunder or unless an exemption from such registration or
qualification is available.
5. The Purchaser hereby undertakes to be bound by the terms and
conditions of the Amended and Restated 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
Amended and Restated 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).
----------
* Each Purchaser must include one of the two alternative certifications.
<PAGE>
[_] 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:
----------
** 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 Banc of America
Commercial Mortgage Inc. Class, R-[I] [II] Commercial Mortgage Pass-Through
Certificate, Series 2000-2, 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 Amended and Restated Pooling and Servicing Agreement pursuant to which
the Residual Certificate was issued (the "Amended and Restated 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 Amended and Restated 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 Amended
and Restated 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 __________, 200_.
[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 ______________, 200_.
--------------------------------------
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)
__________________, 20___
Wells Fargo Bank Minnesota, N.A.
Wells Fargo Center
Sixth & Marquette
Minneapolis, MN 55745
Attn: Corporate Trust Services (CMBS) - Banc of America Commercial Mortgage
Inc. 2000-2-MAC # N9303-121
Re: Banc of America Commercial Mortgage Inc., Commercial Mortgage
Pass-Through Certificates, Series 2000-2, 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] Certificate (the "Residual Certificate"),
pursuant to Section 5.02 of the Amended and Restated Pooling and Servicing
Agreement (the "Amended and Restated Pooling and Servicing Agreement"), dated as
of October 1, 2000, among Banc of America Commercial Mortgage Inc., as
Depositor, Bank of America, N.A. and HVB Realty Capital Inc., as Mortgage Loan
Sellers, ORIX Real Estate Capital Markets, LLC, as Master Servicer, Lennar
Partners, Inc., as Special Servicer, and Wells Fargo Bank Minnesota, N.A., as
Trustee and REMIC Administrator. All terms used herein and not otherwise defined
shall have the respective meanings set forth in the Amended and Restated 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 Amended and
Restated 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
____________________, 20___
Wells Fargo Bank Minnesota, N.A.
1015 10th Ave. S.E.
Minneapolis, MN 55414
Attn: Corporate Trust Services (CMBS) -Banc of America Commercial Mortgage
Inc. Commercial Mortgage Pass-Through Certificates Series 2000-2
In connection with the administration of the Mortgage Files held by
or on behalf of you as Trustee under that certain Amended and Restated Pooling
and Servicing Agreement dated as of October 1, 2000 (the "Amended and Restated
Pooling and Servicing Agreement"), by and among Banc of America Commercial
Mortgage Inc., as Depositor, Bank of America, N.A. and HVB Realty Capital Inc.,
as Mortgage Loan Sellers, ORIX Real Estate Capital Markets, LLC, as Master
Servicer, Lennar Partners, Inc., as Special Servicer, and you, as Trustee and
REMIC Administrator, the undersigned hereby requests a release of the Mortgage
File (or the portion thereof specified below) held by or on behalf of you as
Trustee with respect to the following described Mortgage Loan for the reason
indicated below.
Property Name:______________________________________________
Address:____________________________________________________
Prospectus 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 Amended and
Restated 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 Amended and Restated 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 Amended and Restated Pooling and Servicing
Agreement.
ORIX REAL ESTATE CAPITAL MARKETS, LLC.
By:_____________________________________________
Name:________________________________________
Title:_______________________________________
<PAGE>
<TABLE>
EXHIBIT E
FORM OF REO STATUS REPORT
<CAPTION>
------------------------------------------------------------------------------------------------------------------------------------
Operating Information Reflected As NOI______ or NCF________
------------------------------------------------------------------------------------------------------------------------------------
P4 P7 P13 P9 P10 P16 L8 P21 L37 L39 L38
OR
P17
------------------------------------------------------------------------------------------------------------------------------------
(a) (b) (c) (d) (e)=
a+b+c+d
------------------------------------------------------------------------------------------------------------------------------------
OTHER
SHORT NAME SQ FT PAID ALLOCATED TOTAL P&I EXPENSE TOTAL T & I
(WHEN PROPERTY OR THRU LOAN ADVANCES ADVANCE ADVANCE TOTAL
PROPERTY ID APPROPRIATE) TYPE CITY STATE UNITS DATE AMOUNT OUTSTANDING OUTSTANDING OUTSTANDING EXPOSURE
------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
------------------------------------------------------------------------------------------------------------------------------------
REO's data reflected at the property level for relationships with more than one (1) property should use the Allocated Loan Amount,
and prorate all advances and expenses or other loan level data as appropriate.
(1) Use the following codes: App. - Appraisal, BPO - Brokers Opinion, Int - Internal Value
-----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
<TABLE>
EXHIBIT E
FORM OF REO STATUS REPORT
(continued)
<CAPTION>
------------------------------------------------------------------------------------------------------------------------------------
Operating Information Reflected As NOI______ or NCF________
------------------------------------------------------------------------------------------------------------------------------------
P4 L25 L11 P53 OR P58 OR P24 P25 L35 L77
P74 P72/P79
OR P83
------------------------------------------------------------------------------------------------------------------------------------
(f) (g) (h)=
(.90*g)-e
------------------------------------------------------------------------------------------------------------------------------------
APPRAISAL
BPO OR APPRAISAL TOTAL
CURRENT LTM INTERNAL BPO OR LOSS USING APPRAISAL
MONTHLY MATURITY NOI/NCF LTM DSCR VALUATION VALUE SOURCE INTERNAL 90% APPR. REDUCTION TRANSFER
PROPERTY ID P&I DATE DATE (NOI/NCF) DATE (1) VALUE OR BPO (F) REALIZED DATE
------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
------------------------------------------------------------------------------------------------------------------------------------
REO's data reflected at the property level for relationships with more than one (1) property should use the Allocated Loan Amount,
and prorate all advances and expenses or other loan level data as appropriate.
(1) Use the following codes: App. - Appraisal, BPO - Brokers Opinion, Int - Internal Value
------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
<TABLE>
EXHIBIT E
FORM OF REO STATUS REPORT
(continued)
--------------------------------------------------------------------------------
Operating Information Reflected As NOI______ or NCF________
--------------------------------------------------------------------------------
P4 P28 P26
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
REO DATE ASSET
ACQUISITION EXPECTED TO
PROPERTY ID DATE BE RESOLVED COMMENTS
--------------------------------------------------------------------------------
<S> <C> <C> <C>
--------------------------------------------------------------------------------
REO's data reflected at the property level for relationships with more than one
(1) property should use the Allocated Loan Amount, and prorate all advances and
expenses or other loan level data as appropriate.
(1) Use the following codes: App. - Appraisal, BPO - Brokers Opinion, Int -
Internal Value
--------------------------------------------------------------------------------
</TABLE>
<PAGE>
<TABLE>
REO STATUS REPORT
<CAPTION>
------------------------------------------------------------------------------------------------------------------------------------
OTHER
SQ FT PAID ENDING TOTAL P&I TOTAL ADVANCES
PROSPECTUS PROPERTY PROPERTY OR THRU SCHEDULED ADVANCES TO EXPENSES TO (TAXES & TOTAL
ID NAME TYPE CITY STATE UNITS DATE BALANCE DATE DATE INSURANCE) EXPOSURE
------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
</TABLE>
<PAGE>
<TABLE>
REO STATUS REPORT
(continued)
--------------------------------------------------------------------------------
LTM CAP RATE VALUATION/
PROSPECTUS CURRENT MATURITY NOI LTM LTM ASSIGNED APPRAISAL
ID MONTHLY P&I DATE DATE NOI DSCR *** DATE
--------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
</TABLE>
<PAGE>
<TABLE>
REO STATUS REPORT
<CAPTION>
------------------------------------------------------------------------------------------------------------------------------------
LOSS TOTAL SPECIAL
VALUE APPRAISAL/BPO USING 92% APPRAISAL SERVICING
PROSPECTUS PROPERTY PROPERTY USING NOI OR APPRAISAL ESTIMATED REDUCTION TRANSFER
ID NAME TYPE CITY & CAP RATE INTERNAL VALUE OR BPO RECOVERY % REALIZED DATE
------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
<PAGE>
REO STATUS REPORT
(continued)
--------------------------------------------------------------------------------
REO PENDING
PROSPECTUS ACQUISITION RESOLUTION
ID DATE DATE COMMENTS
--------------------------------------------------------------------------------
</TABLE>
<PAGE>
EXHIBIT F
FORM OF ERISA REPRESENTATION LETTER
Wells Fargo Bank Minnesota, N.A.
Wells Fargo Center
Sixth & Marquette
Minneapolis, MN 55479
Attn: Corporate Trust Services (CMBS) - Banc of America Commercial Mortgage
Inc. 2000-2-MAC # N9303-121
Banc of America Commercial Mortgage Inc.
100 North Tryon Street
Charlotte, North Carolina 28255
Attention:
Re: Transfer of Banc of America Commercial Mortgage Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2000-2
------------------------------------------------------------
Ladies and Gentlemen:
The undersigned (the "Purchaser") proposes to purchase $____________
initial Certificate Balance of Banc of America Commercial Mortgage Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2000-2, Class __ (the
"Certificate") issued pursuant to that Amended and Restated Pooling and
Servicing Agreement, dated as of October 1, 2000 (the "Amended and Restated
Pooling and Servicing Agreement"), by and among Banc of America Commercial
Mortgage Inc., as depositor (the "Depositor"), Bank of America, N.A. and HVB
Realty Capital Inc., as Mortgage Loan Sellers, ORIX Real Estate Capital Markets,
LLC, as master servicer (the "Master Servicer"), Lennar Partners, Inc., as
special servicer (the "Special Servicer") and Wells Fargo Bank Minnesota, N.A.,
as trustee (the "Trustee"). Capitalized terms used and not otherwise defined
herein have the respective meanings ascribed to such terms in the Amended and
Restated 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 Amended and Restated
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 INTERIM CUSTODIAL CERTIFICATION
[Date]
Banc of America Commercial Mortgage Inc.,
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
HVB Realty Capital Inc.,
as Mortgage Loan Seller
150 East 42nd Street
New York, New York 10017-4679
Attention: Daniel P. Kenny and Pamela L. Gheysen
ORIX Real Estate Capital Markets, LLC,
210 W. 10th Street
Kansas City, MO 64108
Re: Amended and Restated Pooling and Servicing Agreement dated as
of October 1, 2000 (the "Agreement") among Banc of America
Commercial Mortgage Inc., as Depositor, Bank of America, N.A.
and HVB Realty Capital Inc., as Mortgage Loan Sellers, ORIX
Real Estate Capital Markets, LLC, as Master Servicer, Lennar
Partners, Inc., as Special Servicer, and Wells Fargo Bank
Minnesota, N.A., as Trustee and REMIC Administrator for the
Certificateholders of Commercial Mortgage Pass Through
Certificates, Series 2000-2
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 Sellers have
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 Sellers 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 H
FORM OF FINAL CUSTODIAL CERTIFICATION
[Date]
Banc of America Commercial Mortgage Inc.,
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 Sellers
Bank of America Corporate Center
100 North Tryon Street
Charlotte, North Carolina 28255
Attention: David A. Gertner
HVB Realty Capital Inc.,
as Mortgage Loan Seller
150 East 42nd Street
New York, New York 10017-4679
Attention: Daniel P. Kenny and Pamela L. Gheysen
ORIX Real Estate Capital Markets, LLC,
as Master Servicer
210 W. 10th Street
Kansas City, MO 64108
Re: Amended and Restated Pooling and Servicing Agreement dated as
of October 1, 2000 (the "Agreement") among Banc of America
Commercial Mortgage Inc., as Depositor, Bank of America, N.A.
and HVB Realty Capital Inc., as Mortgage Loan Sellers, ORIX
Real Estate Capital Markets, LLC, as Master Servicer, Lennar
Partners, Inc., as Special Servicer, and Wells Fargo Bank
Minnesota, N.A., as Trustee and REMIC Administrator for the
Certificateholders of Commercial Mortgage Pass Through
Certificates, Series 2000-2
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 Sellers have
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 Sellers 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 Sellers 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 I
COMMERCIAL OPERATING STATEMENT ANALYSIS REPORT
(inclds. Retail/Office/Whs/Mixed use)
as of MM/DD/YY
====================================================================================================================================
PROPERTY OVERVIEW
PROSPECTUS ID
Current Scheduled Loan Balance Current Allocated Loan Amount %
/Paid to Date
Property Name
Property Type
Property Address, City, State
Net Rentable SF/Units/Pads, Beds Use second box to specify sq ft., units...
Year Built/Year Renovated
Cap Ex Reserve (annually)/per specify annual/per unit...
Unit. etc. (1)
Year of Operations UNDERWRITING MM/DD/YY MM/DD/YY MM/DD/YY MM/DD/YY
Occupancy Rate (physical)
Occupancy Date
Average Rental Rate
(1) Total $ amount of Capital Reserves required annually by loan documents.
====================================================================================================================================
<CAPTION>
INCOME:
------------------------------------------------------------------------------------------------
Number of Mos. Covered (prcdng (prcdng
yr to yr to
base 2nd prcdng
------------------------------------------------------------------------------------------------
3RD 2ND PRECEDING TTM/YTD YYYY- YYYY-
Period Ended UNDERWRITING PRECEDING PRECEDING YR. (2) U/W YYYY
------------------------------------------------------------------------------------------------
Statement Classification (yr) BASE LINE (fm NOI Adj AS OF / / VARIANCE VARIANCE
Sheet)
<S> <C> <C> <C> <C> <C> <C>
Gross Potential Rent (3)
Less: Vacancy/collection loss
OR
Base Rent (3)
Laundry/Vending Income
Parking Income
Other Income
*EFFECTIVE GROSS INCOME
------------------------------------------------------------------------------------------------
(2) Servicer will not be expected to "Normalize" these YTD/TTM numbers.
(3) Use either Gross Potential (with Vacancy/Collection Loss) or Base Rents; use negative $ amt
for Vacancy/Collection Loss
------------------------------------------------------------------------------------------------
OPERATING EXPENSES:
Real Estate Taxes
Property Insurance
Utilities
Repairs and Maintenance
Management Fees
Payroll & Benefits
Advertising & Marketing
Professional Fees
General and Administrative
Other Expenses
Ground Rent
*TOTAL OPERATING EXPENSES
OPERATING EXPENSE RATIO
*NET OPERATING INCOME
Capital Expenditures
Extraordinary Capital Expenditures
TOTAL CAPITAL ITEMS
*NET CASH FLOW
DEBT SERVICE (PER SERVICER)
*NET CASH FLOW AFTER DEBT SERVICE
*DSCR: (NOI/DEBT SERVICE)
*DSCR: (NCF/DEBT SERVICE)
SOURCE OF FINANCIAL DATA:
(i.e., operating statements, financial statements, tax return, other)
------------------------------------------------------------------------------------------------------------------------------------
NOTES AND ASSUMPTIONS: Years above will roll, always showing a 3yr sequential history. Comments from the most recent NOI Adjustment
Worksheet should be carried forward to Operating Statement Analysis Report. Year-over-year variances (either higher or lower) must
be explained and noted for the following: 10% DSCR CHANGE, 15% EGI/TOTAL OPERATING EXPENSES OR TOTAL CAPITAL ITEMS.
------------------------------------------------------------------------------------------------------------------------------------
INCOME COMMENTS:
EXPENSE COMMENTS:
CAPITAL ITEMS COMMENTS:
<FN>
------------------------------------------------------------------------------------------------------------------------------------
* Used in the CMSA Comparative Financial Status Report/CMSA Property File/CMSA Loan Periodic Loan File. Note that information for
multiple property loans must be consolidated (if available) for reporting to the CMSA Loan Periodic file.
------------------------------------------------------------------------------------------------------------------------------------
</FN>
</TABLE>
<PAGE>
<TABLE>
MULTIFAMILY OPERATING STATEMENT ANALYSIS REPORT
(inclds. Mobile Home Parks)
as of MM/DD/YY
====================================================================================================================================
PROPERTY OVERVIEW
PROSPECTUS ID
Current Scheduled Loan Balance Current Allocated Loan Amount %
/Paid to Date
Property Name
Property Type
Property Address, City, State
Net Rentable SF/Units/Pads,Beds Use second box to specify sq ft.,units...
Year Built/Year Renovated
Cap Ex Reserve (annually)/per specify annual/per unit...
Unit.etc. (1)
Year of Operations UNDERWRITING MM/DD/YY MM/DD/YY MM/DD/YY MM/DD/YY
Occupancy Rate (physical)
Occupancy Date
Average Rental Rate
(1) Total $ amount of Capital Reserves required annually by loan documents.
====================================================================================================================================
<CAPTION>
INCOME:
------------------------------------------------------------------------------------------------
Number of Mos. Covered (prcdng (prcdng
yr to yr to
base 2nd prcdng
------------------------------------------------------------------------------------------------
3RD 2ND PRECEDING TTM/YTD YYYY- YYYY-
Period Ended UNDERWRITING PRECEDING PRECEDING YR. (2) U/W YYYY
------------------------------------------------------------------------------------------------
Statement Classification (yr) BASE LINE (fm NOI Adj AS OF / / VARIANCE VARIANCE
Sheet)
<S> <C> <C> <C> <C> <C> <C>
Gross Potential Rent (3)
Less: Vacancy/collection loss
OR
Base Rent (3)
Laundry/Vending Income
Parking Income
Other Income
*EFFECTIVE GROSS INCOME
------------------------------------------------------------------------------------------------
(2) Servicer will not be expected to "Normalize" these YTD/TTM numbers.
(3) Use either Gross Potential (with Vacancy/Collection Loss) or Base Rents; use negative $ amt
for Vacancy/Collection Loss
------------------------------------------------------------------------------------------------
OPERATING EXPENSES:
Real Estate Taxes
Property Insurance
Utilities
Repairs and Maintenance
Management Fees
Payroll & Benefits
Advertising & Marketing
Professional Fees
General and Administrative
Other Expenses
Ground Rent
*TOTAL OPERATING EXPENSES
OPERATING EXPENSE RATIO
*NET OPERATING INCOME
Capital Expenditures
Extraordinary Capital Expenditures
TOTAL CAPITAL ITEMS
*NET CASH FLOW
DEBT SERVICE (PER SERVICER)
*NET CASH FLOW AFTER DEBT SERVICE
*DSCR: (NOI/DEBT SERVICE)
*DSCR: (NCF/DEBT SERVICE)
SOURCE OF FINANCIAL DATA:
(i.e., operating statements, financial statements, tax return, other)
------------------------------------------------------------------------------------------------------------------------------------
NOTES AND ASSUMPTIONS: Years above will roll, always showing a 3yr sequential history. Comments from the most recent NOI Adjustment
Worksheet should be carried forward to Operating Statement Analysis Report. Year-over-year variances (either higher or lower) must
be explained and noted for the following: 10% DSCR CHANGE, 15% EGI/TOTAL OPERATING EXPENSES OR TOTAL CAPITAL ITEMS.
------------------------------------------------------------------------------------------------------------------------------------
INCOME COMMENTS:
EXPENSE COMMENTS:
CAPITAL ITEMS COMMENTS:
<FN>
------------------------------------------------------------------------------------------------------------------------------------
* Used in the CMSA Comparative Financial Status Report/CMSA Property File/CMSA Loan Periodic Loan File. Note that information for
multiple property loans must be consolidated (if available) for reporting to the CMSA Loan Periodic file.
------------------------------------------------------------------------------------------------------------------------------------
</FN>
</TABLE>
<PAGE>
<TABLE>
EXHIBIT J
CMSA Standard Information Package
SERVICER WATCH LIST
as of ______________
(Loan Level Report)
------------------------------------------------------------------------------------------------------------------------------------
Operating Information Reflected As NOI______ or NCF________
------------------------------------------------------------------------------------------------------------------------------------
S4 S55 S61 S57 S58 L7 L8 L11 L56/L93 L70/L97
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
PRECEDING MOST
SHORT NAME SCHEDULED PAID FISCAL YR RECENT
PROSPECTUS (WHEN PROPERTY LOAN THRU MATURITY DSCR DSCR
LOAN ID APPROPRIATE) TYPE CITY STATE BALANCE DATE DATE NOI/NCF NOI/NCF COMMENT/ACTION TO BE TAKEN
------------------------------------------------------------------------------------------------------------------------------------
List all loans on watch list in descending balance order.
Comment section should include reason and other pertinent information.
Should not include loans that are specially serviced.
Total: $
<PAGE>
EXHIBIT K
COMMERCIAL NOI ADJUSTMENT WORKSHEET
(inclds. Retail/Office/Ind/Whs/Mixed use/Self Storage)
as of MM/DD/YY
====================================================================================================================================
PROPERTY OVERVIEW
PROSPECTUS ID
Current Scheduled Loan Balance Current Allocated Loan Amount %
/Paid to Date
Property Name
Property Type
Property Address, City, State
Net Rentable SF/Units/Pads, Beds Use second box to specify sq ft., units...
Year Built/Year Renovated
Cap Ex Reserve (annually)/per specify annual/per unit...
Unit. etc. (1)
Year of Operations UNDERWRITING MM/DD/YY MM/DD/YY MM/DD/YY MM/DD/YY
Occupancy Rate (physical)
Occupancy Date
Average Rental Rate
(1) Total $ amount of Capital Reserves required annually by loan documents.
====================================================================================================================================
<CAPTION>
INCOME: YYYY NOTES
BORROWER ADJUSTMENT NORMALIZED
Statement Classification ACTUAL
<S> <C> <C> <C> <C>
Gross Potential Rent (2)
Less: Vacancy/collection loss
OR
Base Rent (2)
Expense Reimbursement
Percentage Rent
Other Income/Parking Income
EFFECTIVE GROSS INCOME
(2)Use either gross potential (with Vacancy/Collection Loss) or Base Rents; use negative $amt
for Vacancy/Collection Loss
OPERATING EXPENSES:
Real Estate Taxes
Property Insurance Utilities
Repairs and Maintenance
Janitorial
Management Fees
Payroll & Benefits Expense
Advertising & Marketing
Professional Fees
General and Administrative
Other Expenses For self-storage include franchise fees
Ground Rent
TOTAL OPERATING EXPENSES
OPERATING EXPENSE RATIO
NET OPERATING INCOME
Leasing Commissions (3)
Tenant Improvements (3)
Capital Expenditures
Extraordinary Capital Expenditures
TOTAL CAPITAL ITEMS
(3) Actual current yr, but normalize for annual if possible via contractual, U/W or other data
NET CASH FLOW
DEBT SERVICE (PER SERVICER)
NET CASH FLOW AFTER DEBT SERVICE
DSCR: (NOI/DEBT SERVICE)
DSCR: (NCF/DEBT SERVICE)
SOURCE OF FINANCIAL DATA:
------------------------------------------------------------------------------------------------------------------------------------
NOTES AND ASSUMPTIONS: This report should be completed annually for "Normalization" of Borrower's numbers. Methodology used is per
MBA/CMSA Standard Methodology unless otherwise noted. The "Normalized" column and corresponding comments should roll through to the
Operating statement Analysis Report.
INCOME COMMENTS:
EXPENSE COMMENTS:
CAPITAL ITEMS COMMENTS:
------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
<TABLE>
MULTIFAMILY NOI ADJUSTMENT WORKSHEET
(inclds. Mobile Home Parks)
as of MM/DD/YY
====================================================================================================================================
PROPERTY OVERVIEW
PROSPECTUS ID
Current Scheduled Loan Balance Current Allocated Loan Amount %
/Paid to Date
Property Name
Property Type
Property Address, City, State
Net Rentable SF/Units/Pads, Beds Use second box to specify sq ft., units...
Year Built/Year Renovated
Cap Ex Reserve (annually)/per specify annual/per unit...
Unit. etc. (1)
Year of Operations UNDERWRITING MM/DD/YY MM/DD/YY MM/DD/YY MM/DD/YY
Occupancy Rate (physical)
Occupancy Date
Average Rental Rate
(1) Total $ amount of Capital Reserves required annually by loan documents.
====================================================================================================================================
<CAPTION>
INCOME: YYYY NOTES
BORROWER ADJUSTMENT NORMALIZED
Statement Classification ACTUAL
<S> <C> <C> <C> <C>
Gross Potential Rent (2) Include Pad/RV rent
Less: Vacancy/collection loss
OR
Base Rent (2)
Expense Reimbursement
Percentage Rent
Other Income/Parking Income
EFFECTIVE GROSS INCOME
(2) Use either gross potential (with Vacancy/Collection Loss) or Base Rents; use negative
$amt for Vacancy/Collection Loss
OPERATING EXPENSES:
Real Estate Taxes
Property Insurance Utilities
Repairs and Maintenance
Janitorial
Management Fees
Payroll & Benefits Expense
Advertising & Marketing
Professional Fees
General and Administrative
Other Expenses For self-storage include franchise fees
Ground Rent
TOTAL OPERATING EXPENSES
OPERATING EXPENSE RATIO
NET OPERATING INCOME
Leasing Commissions (3)
Tenant Improvements (3)
Capital Expenditures
Extraordinary Capital Expenditures
TOTAL CAPITAL ITEMS
(3) Actual current yr, but normalize for annual if possible via contractual, U/W or other data
NET CASH FLOW
DEBT SERVICE (PER SERVICER)
NET CASH FLOW AFTER DEBT SERVICE
DSCR: (NOI/DEBT SERVICE)
DSCR: (NCF/DEBT SERVICE)
SOURCE OF FINANCIAL DATA:
------------------------------------------------------------------------------------------------------------------------------------
NOTES AND ASSUMPTIONS: This report should be completed annually for "Normalization" of Borrower's numbers. Methodology used is per
MBA/CMSA Standard Methodology unless otherwise noted. The "Normalized" column and corresponding comments should roll through to the
Operating statement Analysis Report.
INCOME COMMENTS:
EXPENSE COMMENTS:
CAPITAL ITEMS COMMENTS:
------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
EXHIBIT L
ENVIRONMENTAL POLICY
AMERICAN INTERNATIONAL
SPECIALTY LINES INSURANCE COMPANY
A Capital Stock Insurance Company
175 Water Street, Twelfth Floor
New York, New York 10038
[LOGO OMITTED]
A Member
Company
of American
International
Group, Inc
NAMED INSURED: Wells Fargo Bank of Minnesota, N.A. as Trustee
for the registered holders of
Banc of America Commercial Mortgage Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2000-2
POST OFFICE: 11000 Broken Land Parkway
Columbia, MD 21044-3562
Attn: Corporate Trust Services (CMBS), Banc of America
Commercial Mortgage Inc., Series 2000-2
NOTICE: COVERAGE B PROVIDES CLAIMS-MADE-AND-REPORTED COVERAGE. PLEASE
READ CAREFULLY.
SECURED CREDITOR IMPAIRED PROPERTY POLICY
(PORTFOLIO)
DECLARATIONS
POLICY NUMBER: 341 73 29
ITEM 1: NAMED INSURED: Wells Fargo Bank of Minnesota, N.A. as Trustee
for the registered holders of
Banc of America Commercial Mortgage Inc.,
Commercial Mortgage Pass-Through Certificates, Series
2000-2
ADDRESS 11000 Broken Land Parkway
Columbia, MD 21044-3562
Attn: Corporate Trust Services (CMBS), Banc of America
Commercial Mortgage Inc., Series 2000-2
ITEM 2: POLICY PERIOD: FROM 9/22/00 TO 9/22/17
12:01 A.M. Standard time at the address of the Named
Insured shown above.
ITEM 3: LIMITS OF LIABILITY: Each LOSS $6,250,000
Total all LOSSes $68,000,000
ITEM 4: DEDUCTIBLE: Each LOSS $0
ITEM 5: INSURED PROPERTY(IES): SEE SCHEDULE OF INSURED PROPERTY ENDORSEMENTS
ITEM 6: POLICY PREMIUM: $107,683
<PAGE>
FORMS SCHEDULE
--------------
NAMED INSURED: Wells Fargo Bank of Minnesota, N.A. as Trustee
for the registered holders of
Banc of America Commercial Mortgage Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2000-2
POLICY NO: 341 73 29
EFFECTIVE 12:01 AM: 9/22/00
FORM NAME FORM NUMBER
--------------------------------------------------------------------------------
AISLIC Secured Creditor Impaired Property Policy 75795 (2/00)
Declarations Page 75794 (2/00)
Insured Property Endorsement
Amendatory Endorsement
Asbestos and Lead Based Paint Endorsement
<PAGE>
ENDORSEMENT NO. 1
FORMS A PART OF POLICY NUMBER: 341 73 29
ISSUED TO: Wells Fargo Bank of Minnesota, N.A. as Trustee
for the registered holders of
Banc of America Commercial Mortgage Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2000-2
BY: American International Specialty Lines Insurance Company
SCHEDULE OF INSURED PROPERTIES
------------------------------
In consideration of premium paid, it is hereby agreed that the following
property is scheduled as an INSURED PROPERTY effective 12:01 a.m. 9/22/00 and
expires 12:01 a.m. 9/22/17:
--------------------------------------------------------------------------------
ADDRESS CITY STATE ZIP
--------------------------------------------------------------------------------
1845 DINUBA BLVD. VISALIA CA 93291
--------------------------------------------------------------------------------
520 E. TULARE AVE. VISALIA CA 93292
--------------------------------------------------------------------------------
123 EAST ALMA AVE. SAN JOSE CA 95112
--------------------------------------------------------------------------------
701-703 HOLLYCREST DR, 702 CRESCENT DR & CHAMPAIGN IL 61821
2003 W. JOHN ST.
--------------------------------------------------------------------------------
5301, 5309 AND 5317 EAST GLENN STREET TUSCON AZ 86712
--------------------------------------------------------------------------------
1045 RIVERSIDE AVENUE JACKSONVILLE FL 32202
--------------------------------------------------------------------------------
2200 NORTH MAIN STREET PRINCETON IL 61356
--------------------------------------------------------------------------------
8019 BELAIR ROAD BALTIMORE MD 21236
--------------------------------------------------------------------------------
5060 RODEO DRIVE #5080 LOS ANGELES CA 90016
--------------------------------------------------------------------------------
9833 NEWELL-HICKORY GROVE ROAD CHARLOTTE NC 28213
--------------------------------------------------------------------------------
1835 SAVOY DRIVE CHAMBLEE GA 30341
--------------------------------------------------------------------------------
510 EAST ETNA ROAD OTTAWA IL 61350
--------------------------------------------------------------------------------
2220 CHANTICLEER AVENUE SANTA CRUZ CA 95062
--------------------------------------------------------------------------------
8021 CALMONT AVE FORT WORTH TX 76116
--------------------------------------------------------------------------------
3710 HIGHWAY 17 BYPASS MURRELLS INLET SC 29576
--------------------------------------------------------------------------------
3850 SOUTH CAPITOL STREET, SE WASHINGTON DC 20032
--------------------------------------------------------------------------------
34190 CAMINO CAPISTRANO CAPISTRANO BEACH CA 92624
--------------------------------------------------------------------------------
480 WEST SOUTHLAKE BOULEVARD SOUTHLAKE TX 76092
--------------------------------------------------------------------------------
ROUTE 9 AND AMBROSE DRIVE RANSON WV 25438
--------------------------------------------------------------------------------
1330 WEST 75TH STREET DOWNERS GROVE IL 60516
--------------------------------------------------------------------------------
1710-1730 POPHAM AVENUE BRONX NY 10453
--------------------------------------------------------------------------------
1895 CENTRAL AVENUE ALBANY NY 12205
--------------------------------------------------------------------------------
1647 BENNING ROAD, NE WASHINGTON DC 20002
--------------------------------------------------------------------------------
13180 MIDLOTHIAN TURNPIKE MIDLOTHIAN VA 23113
--------------------------------------------------------------------------------
601-605 LABRADOR BLVD & 606 LONG BLVD GARDEN CITY KS 67846
--------------------------------------------------------------------------------
168 HICKORY HEIGHTS DRIVE HENDERSONVILLE TN 37075
--------------------------------------------------------------------------------
2907 WATSON BLVD. WARNER ROBINS GA 31093
--------------------------------------------------------------------------------
1301-A RIDGEVIEW DRIVE LEWISVILLE TX 75507
--------------------------------------------------------------------------------
831 CEDAR AVENUE BENSALEM PA 19020
--------------------------------------------------------------------------------
699 E STREET CHULA VISTA CA 91910
--------------------------------------------------------------------------------
9565 SOQUEL DRIVE APTOS CA 95003
--------------------------------------------------------------------------------
11215 INDIANA AVENUE RIVERSIDE CA 92503
--------------------------------------------------------------------------------
454 NORTH LINDSAY ROAD AND
2644-2750 E. UNIVERSITY DRIVE MESA AZ 85213
--------------------------------------------------------------------------------
7045 WOODLEY AVENUE VAN NUYS CA 91406
--------------------------------------------------------------------------------
270 & 300-330 JOHN DOWNEY DRIVE NEW BRITAIN CT 06051
--------------------------------------------------------------------------------
401 SOUTH GLENOAKS BLVD. BURBANK CA 91502
--------------------------------------------------------------------------------
2402 SOUTHGATE DRIVE KINGSPORT TN 37660
--------------------------------------------------------------------------------
2502 E. KANSAS AVE GARDEN CITY KS 67846
--------------------------------------------------------------------------------
7600 SCHOMBURG ROAD COLUMBUS GA 31909
--------------------------------------------------------------------------------
1011-1033 ST. PATRICKS DR PERRY GA 31069
--------------------------------------------------------------------------------
2100 NE 62 ST NORTH MIAMI BEACH FL 33162
--------------------------------------------------------------------------------
908 SHERMAN STREET SAN DIEGO CA 92110
--------------------------------------------------------------------------------
7885 FM 1960 WEST HOUSTON TX 77070
--------------------------------------------------------------------------------
6630-A SOUTH MCCARRAN BLVD RENO NV 89509
--------------------------------------------------------------------------------
30592 SANTA MARGARITA PARKWAY RANCHO SANTA CA 92688
MARGARITA
--------------------------------------------------------------------------------
5409 TEMPLE PALMS AVE TAMPA FL 33617
--------------------------------------------------------------------------------
201 TECHNACENTER DRIVE MONTGOMERY AL 36117
--------------------------------------------------------------------------------
3290 NORTH RANCHO DRIVE LAS VEGAS NV 89130
--------------------------------------------------------------------------------
8800 GLACIER HIGHWAY JUNEAU AK 99801
--------------------------------------------------------------------------------
41715 WINCHESTER RD. TEMECULA CA 92520
--------------------------------------------------------------------------------
915 DOYLE ROAD DELTONA FL 32725
--------------------------------------------------------------------------------
1200 HILMAR CT. MONTGOMERY AL 36117
--------------------------------------------------------------------------------
250, 254, 270, 274 AND 280 COHASSET ROAD CHICO CA 95926
--------------------------------------------------------------------------------
3100 DOUGLAS BLVD. ROSEVILLE CA 95661
--------------------------------------------------------------------------------
316, 318, 320 AND 321 WEST PIKE ST. LAWRENCEVILLE GA 30045
--------------------------------------------------------------------------------
10857 SHARONDALE ROAD CINCINNATI OH 45241
--------------------------------------------------------------------------------
22, 24, 26 W. JAMESTOWN ST STOCKTON CA 95207
--------------------------------------------------------------------------------
20126 STANTON AVENUE CASTRO VALLEY CA 94546
--------------------------------------------------------------------------------
6710, 6720 AND 6740 HAYVENHURST AVE VAN NUYS CA 91406
--------------------------------------------------------------------------------
420 W. ARROW HIGHWAY COVINA CA 91722
--------------------------------------------------------------------------------
146 & 146-A MANETTO HILL ROAD PLAINVIEW NY 11803
--------------------------------------------------------------------------------
155 NW 10TH ST. HOMESTEAD FL 33030
--------------------------------------------------------------------------------
1223 NE 1ST AVE HOMESTEAD FL 33030
--------------------------------------------------------------------------------
929 NW 2ND ST. HOMESTEAD FL 33030
--------------------------------------------------------------------------------
67 NE 9TH COURT HOMESTEAD FL 33030
--------------------------------------------------------------------------------
930 NW 1ST AVE. HOMESTEAD FL 33030
--------------------------------------------------------------------------------
938 NW 1ST AVE. HOMESTEAD FL 33030
--------------------------------------------------------------------------------
55 NE 9TH COURT HOMESTEAD FL 33030
--------------------------------------------------------------------------------
960 NE 1ST AVE. HOMESTEAD FL 33030
--------------------------------------------------------------------------------
110 NE 10TH AVE. HOMESTEAD FL 33030
--------------------------------------------------------------------------------
186 NW 2ND ST. HOMESTEAD FL 33030
--------------------------------------------------------------------------------
194 NW 2ND ST. HOMESTEAD FL 33030
--------------------------------------------------------------------------------
460 NW 6TH ST. HOMESTEAD FL 33030
--------------------------------------------------------------------------------
480 NW 6TH ST. HOMESTEAD FL 33030
--------------------------------------------------------------------------------
521 NW 5TH ST. HOMESTEAD FL 33030
--------------------------------------------------------------------------------
906 NW 1ST AVE. HOMESTEAD FL 33030
--------------------------------------------------------------------------------
925 N. KROME AVE. HOMESTEAD FL 33030
--------------------------------------------------------------------------------
30100 OLD DIXIE HIGHWAY HOMESTEAD FL 33030
--------------------------------------------------------------------------------
1706 ART MUSEUM DRIVE JACKSONVILLE FL 32207
--------------------------------------------------------------------------------
22507 IVERSON DRIVE GREAT MILLS MD 20634
--------------------------------------------------------------------------------
1020 EAST 45TH STREET AUSTIN TX 78751
--------------------------------------------------------------------------------
2419 E. COMMERCIAL BLVD FORT LAUDERDALE FL 33308
--------------------------------------------------------------------------------
3701-3753 NEW MACLAND ROAD POWDER SPRINTGS GA 30127
--------------------------------------------------------------------------------
8910 CLEARY BLVD PLANTATION FL 33324
--------------------------------------------------------------------------------
4241 CHESTER LANE BAKERSFIELD CA 93309
--------------------------------------------------------------------------------
645 ALLIED WAY EL SEGUNDO CA 90245
--------------------------------------------------------------------------------
180 TOWNSEND STREET SAN FRANCISCO CA 94107
--------------------------------------------------------------------------------
31271-31371 NIGUEL ROAD LAGUNA NIGUEL CA 92677
--------------------------------------------------------------------------------
4401 ATLANTIC AVE. RALEIGH NC 27604
--------------------------------------------------------------------------------
19250 W. LAKE HOUSTON PARKWAY HUMBLE (HOUSTON) TX 77346
--------------------------------------------------------------------------------
3140 EAST PARIS AVENUE, SE KENTWOOD MI 49512
--------------------------------------------------------------------------------
103000-1033 STONEYBRIDGE COURT FORTH WORTH TX 76133
106000-10714 LONE PINE LANE
200-219 LONE PINE COURT
2712-2738 COUNTRYSIDE
3017-3219 GREENRIDGE
3305-3421 SOUTH MEADOW
3421A, 3423A, 3425A, 3427A MEADOWMOOR DR.
3423, 3425, 3427 SOUTH MEADOW
6600-6651 SOUTH CREEK NORTH
6700-6727 CRESTMONT COURT
6820-6858 SOUTH CREEK SOUTH
--------------------------------------------------------------------------------
1902 BRADY DR DALTON GA 30720
--------------------------------------------------------------------------------
10 JAY STREET BROOKLYN NY 11201
--------------------------------------------------------------------------------
SEC URBANDALE AVENUE/30TH STREET DES MOINES IA 50310
--------------------------------------------------------------------------------
1817 WEST CALL STREET TALLAHASSEE FL 32304
--------------------------------------------------------------------------------
3401 INTERNATIONAL BOULEVARD HAPERVILLE GA 30354
--------------------------------------------------------------------------------
390 BEE ST. MERIDEN CT 06450
--------------------------------------------------------------------------------
All other terms, conditions and exclusions remain the same.
/S/
-------------------------------------------
AUTHORIZED REPRESENTATIVE
or countersignature (where required by law)
<PAGE>
ENDORSEMENT NO. 2
THIS ENDORSEMENT, EFFECTIVE 12:01 AM, 9/22/00
FORMS A PART OF POLICY NO.: 341 73 29
ISSUED TO: Wells Fargo Bank of Minnesota, N.A. as Trustee
for the registered holders of
Banc of America Commercial Mortgage Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2000-2
BY: American International Specialty Lines Insurance Company
SECURED CREDITOR IMPAIRED PROPERTY ENDORSEMENT
----------------------------------------------
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY
It is hereby agreed that the Policy is amended as follows:
1. SECTION II. NOTICE REQUIREMENTS AND CLAIM PROVISIONS, paragraph A. is
deleted in its entirety and replaced with the following:
A. The INSURED shall give written notice to the Company, as soon as
possible but not later than forty-five (45) days after the INSURED first
learns of the DEFAULT and POLLUTION CONDITIONS with respect to Coverage A,
a CLAIM with respect to Coverage B, or POLLUTION CONDITIONS with respect
to Coverage C to:
Manager, Pollution Insurance Products Unit
AIG Technical Services, Inc.
Environmental Claims Department
80 Pine Street, Sixth Floor
New York, New York 10005
and
Division Attorney - Pollution Legal Liability
Commerce and Industry Insurance Company
175 Water Street
New York, New York 10038
or other address(es) as substituted by the Company in writing.
2. SECTION III. DUTIES OF THE INSURED IN THE EVENT OF LOSS, paragraph A is
deleted in its entirety and replaced with the following:
A. The INSURED shall furnish the following to the Company as soon as
available and practicable after the INSURED first learns of the DEFAULT
and POLLUTION CONDITIONS with respect to Coverage A, a CLAIM with respect
to Coverage B, or POLLUTION CONDITIONS with respect to Coverage C:
1. all correspondence between the INSURED and any claimant;
2. all demands, summons, notices or other processes or papers
filed with a court of law, administrative agency or
investigative body;
3. all technical reports, laboratory data, field notes or any
other documents generated by persons hired by the INSURED to
investigate or remediate POLLUTION CONDITIONS;
4. all expert reports, investigations and data collected by
experts retained by the INSURED, whether or not the INSURED
intends to use the material for any purpose;
5. all other information developed or discovered by the INSURED
concerning the DEFAULT and POLLUTION CONDITIONS, or LOSS.
3. Section IV. EXCLUSIONS, paragraph G is deleted in its entirety and
replaced with the following:
G. arising from POLLUTION CONDITIONS existing prior to the effective
date of coverage for an INSURED PROPERTY if as of such date the INSURED
knew that such POLLUTION CONDITIONS could give rise to a LOSS under this
Policy and failed to disclose such POLLUTION CONDITIONS to the Company, or
the Company did not otherwise learn of such POLLUTION CONDITIONS from
engineering reports, environmental spreadsheets, the Secured Creditor
Impaired Property Questionnaire, or from other technical reports the
Company obtained independently.
4. Section VI. DEFINITIONS, paragraph D. CLEAN-UP COSTS, F. DEFAULT, and R.
POLLUTION CONDITIONS are deleted in their entirety and replaced with the
following, respectively:
D. CLEAN-UP COSTS means expenses, including reasonable and necessary
legal expenses incurred with the Company's written consent which consent
shall not be unreasonably withheld or delayed, incurred in the
investigation (including remedial studies and design), removal,
remediation (including the associated monitoring), or disposal of soil,
surfacewater, groundwater or other contamination:
(1) to the extent required by ENVIRONMENTAL LAWS, or by court
order or directive, the government or any political
subdivision of the United States of America or any state
thereof, or Canada; or
(2) which have been actually incurred by the government or any
political subdivision of the United States of America or any
state thereof, or Canada or any province thereof, or by
third-parties.
F. DEFAULT means the failure of a BORROWER to make any part of a
scheduled, periodic or final payment by the due date under the COMMERCIAL
REAL ESTATE LOAN or the BORROWER'S failure to comply with items designated
as the causes OR events of default as provided BY the terms of the
COMMERCIAL REAL ESTATE LOAN. The DEFAULT shall be deemed to occur on the
day after such due date under the COMMERCIAL REAL ESTATE LOAN provided
that the DEFAULT was not cured within the applicable grace period as
provided by the terms of the COMMERCIAL REAL ESTATE LOAN.
R. POLLUTION CONDITIONS means:
(1) with respect to Coverages A and C, the discharge, dispersal,
release or escape of any solid, liquid, gaseous or thermal irritant or
contaminant, including smoke, vapors, soot, fumes, acids, alkalis, toxic
chemicals, hazardous substances, and waste materials into or upon land, or
any structure on land, the atmosphere or any watercourse or body of water,
including groundwater, resulting in concentrations or amounts exceeding
maximum levels allowed by applicable ENVIRONMENTAL LAWS, or by
governmental or court order or directive, acting under the authority
granted by ENVIRONMENTAL LAWS, provided such conditions are not naturally
present in the environment in the concentration or amounts discovered.
(2) with respect to Coverage B, the discharge, dispersal, release,
or escape of any solid, liquid, gaseous or thermal irritant or
contaminant, including smoke, vapors, soot, fumes, acids, alkalis, toxic
chemicals, and waste materials into or upon land, or any structure on
land, the atmosphere or any watercourse or body of water, including
groundwater, provided such conditions are not naturally present in the
environment in the concentration or amounts discovered.
5. Section VIII. CONDITIONS, paragraph A. ASSIGNMENT is deleted in its
entirety and replaced with the following:
A. ASSIGNMENT - This Policy may not be assigned without the prior
written consent of the Company which consent shall not be unreasonably
withheld. Assignment of interest under this Policy shall not bind the
Company until its consent is endorsed thereon. However, this Policy may be
assigned by the NAMED INSURED, without the Company's prior written consent
to a SERVICER or TRUSTEE, or another entity which has, directly or
indirectly, invested in or loaned money in connection with an INSURED
PROPERTY. The NAMED INSURED must provide the Company written notice of
such assignment within forty-five (45) days of the effective date of the
assignment.
All other terms, conditions and exclusions shall remain the same.
/S/
-----------------------------------------------
AUTHORIZED REPRESENTATIVE
or countersignature (in states where applicable)
<PAGE>
ENDORSEMENT NO. 3
THIS ENDORSEMENT EFFECTIVE 12:01 A.M.: 9/22/00
FORMS A PART OF POLICY #: 341 73 29
ISSUED TO: Wells Fargo Bank of Minnesota, N.A. as Trustee
for the registered holders of
Banc of America Commercial Mortgage Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2000-2
BY: American International Specialty Lines Insurance Company
AMENDATORY ENDORSEMENT
----------------------
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.
It is hereby agreed that Paragraphs J & K of SECTION IV. EXCLUSIONS are deleted
in their entirety and replaced with the following:
J. arising from the presence of asbestos or asbestos-containing materials
installed in or on any building or other structure. With the exception of
residential properties, this exclusion shall not apply to CLAIMS for
BODILY INJURY or government mandated CLEAN-UP COSTS on any INSURED
PROPERTY.
K. arising from the presence of lead-based paint applied to any real or
personal property on or under an INSURED PROPERTY. With the exception of
residential properties, this exclusion shall not apply to CLAIMS for
BODILY INJURY or government mandated CLEAN-UP COSTS on any INSURED
PROPERTY.
/S/
-------------------------------------------
AUTHORIZED REPRESENTATIVE
or countersignature (where required by law)
<PAGE>
AMERICAN INTERNATIONAL SPECIALTY LINES INSURANCE COMPANY
SECURED CREDITOR IMPAIRED PROPERTY POLICY
THIS POLICY HAS CERTAIN PROVISIONS AND REQUIREMENTS UNIQUE TO IT AND MAY
BE DIFFERENT FROM OTHER POLICIES THE INSURED MAY HAVE PURCHASED. PLEASE READ THE
ENTIRE POLICY CAREFULLY TO DETERMINE THE INSURED'S RIGHTS AND DUTIES, AND WHAT
IS AND IS NOT COVERED. VARIOUS PROVISIONS THROUGHOUT THIS POLICY RESTRICT OR
EXCLUDE COVERAGE.
COVERAGE IS AFFORDED ONLY FOR THOSE INSURED PROPERTIES SCHEDULED ON THE
POLICY.
DEFINED TERMS APPEAR IN BOLD FACE TYPE.
In consideration of the payment of the premium, in reliance upon the statements
in the Declarations and Secured Creditor Impaired Property Application
incorporated by reference and made a part hereof, and pursuant to all of the
terms of this Policy, the Company agrees with the INSURED as follows:
I. INSURING AGREEMENT
A. COVERAGE A - DEFAULT AND POLLUTION CONDITIONS
The Company will indemnify the INSURED for LOSS, if during the POLICY
PERIOD and prior to FORECLOSURE, there is a DEFAULT by a BORROWER on a
COMMERCIAL REAL ESTATE LOAN secured by an INSURED PROPERTY, LEASEHOLD or FIXED
ASSETS, and there are POLLUTION CONDITIONS on, under or emanating from the same
INSURED PROPERTY prior to or while the COMMERCIAL REAL ESTATE LOAN is in
DEFAULT.
B. COVERAGE B - THIRD-PARTY CLAIMS
The Company agrees to pay LOSS on behalf of the INSURED that the INSURED
becomes legally obligated to pay as a result of CLAIMS first made against the
INSURED and reported to the Company, in writing, during the POLICY PERIOD, for
BODILY INJURY, PROPERTY DAMAGE or CLEAN-UP COSTS resulting from POLLUTION
CONDITIONS on, under or emanating from an INSURED PROPERTY.
C. COVERAGE C - CLEAN-UP OF POLLUTION CONDITIONS
The Company agrees to pay LOSS on behalf of the INSURED, after
FORECLOSURE, if CLEAN-UP COSTS are sustained because there are POLLUTION
CONDITIONS on, under or emanating from the INSURED PROPERTY during the POLICY
PERIOD provided that where required, such POLLUTION CONDITIONS have been
reported by the INSURED to the appropriate governmental agency in compliance
with applicable ENVIRONMENTAL LAWS, in effect as of the date of discovery.
D. LEGAL EXPENSE AND DEFENSE - COVERAGE B
The Company shall have the right and duty to investigate and defend any
CLAIM described in Coverage B. The Company's duty to defend or continue
defending any such CLAIM, and to pay any LOSS, shall cease once the applicable
limit of coverage, as described in Section V. LIMITS OF COVERAGE; DEDUCTIBLE has
been exhausted. Investigation and defense costs, charges and expenses are
included in LOSS, reduce the applicable limit of liability, and are included
within the Deductible amount shown in Item 4 of the Declarations.
E. INDEPENDENT COUNSEL - COVERAGE B
If the INSURED is entitled by law to select independent counsel to defend
the INSURED at the Company's expense, the attorney fees and all other litigation
expenses the Company must pay to that counsel are limited to the 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 competency,
including experience in defending CLAIMS or suits similar to the one pending
against the INSURED and to require such counsel to have errors and omissions
insurance coverage. As respects to such counsel, the INSURED agrees that counsel
will timely respond to the Company's request for information regarding the
CLAIM.
Furthermore, the INSURED may at any time, by its signed consent, freely
and fully waive its rights to select independent counsel.
II. NOTICE REQUIREMENTS AND CLAIM PROVISIONS
It is a condition precedent to any rights afforded under this Policy that
the INSURED provide the Company with notice of DEFAULT and POLLUTION CONDITIONS,
or LOSS as follows:
A. The INSURED shall give written notice to the Company, as soon as
possible but not later than forty-five (45) days after the INSURED first learns
of the DEFAULT and POLLUTION CONDITIONS, or LOSS to:
Manager, Pollution Insurance Products Unit
AIG Technical Services, Inc.
Environmental Claims Department
80 Pine Street, Sixth Floor
New York, New York 10005
and
Division Attorney - Pollution Legal Liability
Amedcan International Specialty Lines Insurance Company
175 Water Street, Twelfth Floor
New York, New York 10038
or other address(es) as substituted by the Company in writing.
B. The notice shall include, at a minimum, information sufficient to
identify the INSURED, the INSURED PROPERTY, the names of the persons with
knowledge regarding the time, place, cause, nature of and other circumstances of
the DEFAULT and POLLUTION CONDITIONS, or LOSS.
C. The notice may be provided only by the INSURED and may not be delegated
to third parties. It is not a defense to this condition precedent that the
Company learned of the DEFAULT and POLLUTION CONDITIONS, or LOSS through any
independent means.
III. DUTIES OF THE INSURED IN THE EVENT OF LOSS
A. The INSURED shall furnish the following to the Company as soon as
available and practicable after the INSURED first learns of the DEFAULT and
POLLUTION CONDITIONS, or LOSS:
1. all correspondence between the INSURED and any claimant;
2. all demands, summons, notices or other processes or papers
filed with a court of law, administrative agency or
investigative body;
3. all technical reports, laboratory data, field notes or any
other documents generated by persons hired by the INSURED to
investigate or remediate POLLUTION CONDITIONS;
4. all expert reports, investigations and data collected by
experts retained by the INSURED, whether or not the INSURED
intends to use the material for any purpose;
5. all other information developed or discovered by the INSURED
concerning the DEFAULT and POLLUTION CONDITIONS, or LOSS.
B. No INSURED shall voluntarily enter into any settlement, make any
payment, assume any obligation, or incur any costs, charges or expenses in the
defense or investigation of a CLAIM without the Company's consent, which shall
not be unreasonably withheld or delayed, except at the INSURED'S own cost, or in
response to an emergency or pursuant to ENVIRONMENTAL LAWS which require
immediate remediation of POLLUTION CONDITIONS.
C. IF the INSURED refuses to consent to any settlement within the limits
of coverage of this Policy recommended by the Company and acceptable to the
claimant, the Company's duty to defend the INSURED shall then cease and the
INSURED shall thereafter negotiate or defend such CLAIM independently of the
Company and the Company's liability shall not exceed the amount, less the
Deductible or any outstanding Deductible balance, for which the CLAIM could have
been settled if such recommendation was consented to.
D. The INSURED must cooperate with the Company and offer all reasonable
assistance in the investigation and defense of CLAIMS. The Company may require
that the INSURED submit to examination under oath, and attend hearings,
depositions and trials. In the course of investigation or defense, the Company
may require written statements or the INSURED'S attendance at meetings with the
Company. The INSURED must reasonably assist the Company in effecting settlement,
securing and providing evidence and obtaining the attendance of witnesses, all
without charge to the Company.
IV. EXCLUSIONS
This Policy does not apply to LOSS:
A. due to or for any punitive, exemplary or multiplied portion of multiple
damages or any civil or administrative fines, penalties or assessments, except
where such damages, fines, penalties or assessments are insurable by applicable
law; or any criminal fines, penalties or assessments.
B. arising as a result of liability of others assumed by the INSURED under
any contract or agreement, unless the liability of the INSURED would have
attached in the absence of such contract or agreement.
C. arising out of any obligation of the INSURED under any worker's
compensation, unemployment compensation or disability benefits law or similar
law.
D. arising from BODILY INJURY to an employee of the INSURED or its parent,
subsidiary or affiliate arising out of and in the course of employment by the
INSURED or its parent, subsidiary or affiliate. This exclusion applies (1)
whether the INSURED may be liable as an employer or in any other capacity; and
(2) to any obligation to share damages with or repay third parties that must pay
damages because of this injury.
E. arising from POLLUTION CONDITIONS resulting from or attributable to the
INSURED'S intentional, knowing, willful or deliberate noncompliance with any
statute, regulation, ordinance, administrative complaint, notice of violation,
notice letter, executive order, or instruction of any governmental agency or
body.
F. arising from POLLUTION CONDITIONS resulting from an intentionally
illegal act or omission of the INSURED, if the INSURED knew that the POLLUTION
CONDITIONS would result.
G. arising from POLLUTION CONDITIONS existing prior to the effective date
of coverage for an INSURED PROPERTY, and not otherwise specifically excluded by
endorsement to this Policy, if as of such date the INSURED knew that such
POLLUTION CONDITIONS could give rise to a LOSS under this Policy and failed to
disclose such POLLUTION CONDITIONS to the Company, or the Company did not
otherwise learn of such POLLUTION CONDITIONS from engineering reports,
environmental spreadsheets, the Secured Creditor Impaired Property
Questionnaire, or from other technical reports the Company obtained
independently.
H. by one INSURED against any other person or entity who is also an
INSURED under this Policy.
I. for costs, charges or expenses incurred by the INSURED for goods
supplied or services performed by the staff or salaried employees of the
INSURED, or its parent, subsidiary or affiliate, unless such costs, charges or
expenses are incurred with the prior written approval of the Company in its sole
discretion.
J. arising from the presence of asbestos or any asbestos-containing
materials installed in or on any building or other structure.
K. arising from the presence of lead-based paint applied to any real or
personal property on or under an INSURED PROPERTY.
V. LIMITS OF COVERAGE; DEDUCTIBLE
Regardless of the number of POLLUTION CONDITIONS, INSUREDS, CLAIMS, LOSSES
or claimants under this Policy, the following limits of coverage apply:
A. POLICY AGGREGATE LIMIT
The Company's total liability for all LOSS covered under this Policy
shall not exceed the "Total all LOSSes" stated in Item 3 of the Declarations.
The purchase of an Extended Reporting Period pursuant to Section VIl. of this
Policy shall not serve to reinstate or increase the "Total all LOSSes".
B. EACH LOSS LIMIT
Subject to and included in the limit of liability described in Paragraph
A. above, the most the Company will pay in excess of the deductible amount shown
in Item 4 of the Declarations for each LOSS under Coverage A and B, and for all
CLEAN-UP COSTS arising from the same, continuous or related POLLUTION CONDITIONS
under Coverage C, is the "Each LOSS" limit of liability shown in Item 3 of the
Declarations.
C. RELATED POLLUTION CONDITIONS
1. Solely with respect to Coverage B, if a CLAIM for BODILY
INJURY, PROPERTY DAMAGE or CLEAN-UP COSTS is first made
against the INSURED and reported to the Company during this
POLICY PERIOD, all CLAIMS for BODILY INJURY, PROPERTY Damage
or CLEAN-UP COSTS arising from the same, continuous or related
POLLUTION CONDITIONS, which are made against the INSURED and
reported under a subsequent Secured Creditor Impaired Property
Policy issued by the Company or its affiliate, shall be deemed
to have been first made and reported under this Policy and
shall be subject to the Limits of Liability under this Policy.
Coverage under this Policy for such CLAIMS made against the INSURED
and reported under a subsequent Secured Creditor Impaired Property Policy as
described in Paragraph 1. above, shall not apply unless at the time such CLAIMS
are first made and reported the INSURED has maintained with the Company or its
affiliate Secured Creditor Impaired Property coverage substantially the same as
this coverage on a successive, uninterrupted basis since the first such CLAIM
was made against the INSURED and reported to the Company.
2. All LOSS arising from the same, continuous, or related
POLLUTION CONDITIONS shall be subject to one `Each LOSS" limit
of liability. In the event coverage is provided under more
than one of Coverages A, B and C, only one "Each LOSS" limit
stated in Item 3 of the Declarations shall apply.
D. DEDUCTIBLE
Subject to Section V. LIMITS OF COVERAGE; DEDUCTIBLE, Paragraphs A.,
and B. above, this Policy is to pay all LOSS in excess of the "Each LOSS"
Deductible amount stated in Item 4 of the Declarations. The Deductible amount
includes investigation and defense costs, charges and expenses, and applies to
all LOSS arising from the same, related or continuous POLLUTION CONDITIONS.
The INSURED shall promptly reimburse the Company for advancing any
payment of LOSS falling within the Deductible.
VI. DEFINITIONS
A. BODILY INJURY means physical injury, sickness, disease, mental anguish
or emotional distress sustained by any person, including death resulting
therefrom.
B. BORROWER means any obligor on a COMMERCIAL REAL ESTATE LOAN, including
without limitation, any guarantor therefor, the holder of any ownership interest
in an INSURED PROPERTY and any other person, entity or organization controlled
by or under common control of the obligor.
C. CLAIM means a written demand received by the INSURED seeking a remedy
and alleging liability or responsibility on the part of the INSURED for LOSS
under Coverage B.
D. CLEAN-UP COSTS means expenses, including reasonable and necessary legal
expenses, incurred with the Company's written consent, incurred in the
investigation (including remedial studies and design), removal, remediation
(including the associated monitoring), or disposal of soil, surfacewater,
groundwater or other contamination:
(1) to the extent required by ENVIRONMENTAL LAWS, or specifically
mandated by court order, the government or any political
subdivision of the United States of America or any state
thereof, or Canada; or
(2) which have been actually incurred by the government or any
political subdivision of the United States of America or any
state thereof, or Canada or any province thereof, or by
third-parties.
E. COMMERCIAL REAL ESTATE LOAN means an obligation evidenced by loan
documents which is secured by the INSURED PROPERTY, LEASEHOLD or FIXED ASSETS as
scheduled in Item 5 of the Declarations, and in which loan documents the INSURED
relies upon such INSURED PROPERTY, LEASEHOLD or FIXED ASSETS as security for the
loan and obtains a perfected mortgage or other security interest.
F. DEFAULT means the failure of a BORROWER to make any part of a
scheduled, periodic or final payment by the due date under the COMMERCIAL REAL
ESTATE LOAN or the BORROWER'S failure to comply with items designated as the
causes or events of default as provided by the terms of the COMMERCIAL REAL
ESTATE LOAN. The DEFAULT shall be deemed to occur on the day after such due date
under the COMMERCIAL REAL ESTATE LOAN provided that the DEFAULT was not cured
within the applicable grace period as provided by the terms of the COMMERCIAL
REAL ESTATE LOAN. For purposes of this Policy, the mere presence of a POLLUTION
CONDITION shall not be deemed a cause or event of default.
G. ENVIRONMENTAL LAWS means any federal, state or local laws (including
but not limited to statutes, regulations, rules, ordinances, guidance documents,
and governmental or administrative orders and directives) which are applicable
to POLLUTION CONDITIONS.
H. FIXED ASSETS means fixtures, plant and equipment at or on an INSURED
PROPERTY owned by the BORROWER, which are depreciated over their useful life.
I. FORECLOSURE means taking title to an interest in the INSURED PROPERTY,
LEASEHOLD or FIXED ASSETS through the enforcement of a lien, mortgage, deed of
trust or other secured interest under a COMMERCIAL REAL ESTATE LOAN, whether
through legal proceedings or otherwise.
J. INSURED means the NAMED INSURED, TRUSTEE or SERVICER, and any director,
officer, partner or employee thereof while acting within the scope of his or her
duties as such, and any such additional INSURED added by endorsement to this
Policy.
K. INSURED PROPERTY means the real property, including any FIXED ASSETS or
LEASEHOLD, scheduled in Item 5. of the Declarations on the date of the LOSS.
L. LEASEHOLD means the BORROWER'S right to possession of leased INSURED
PROPERTY pursuant to a written lease agreement.
M. LOSS means:
1. With respect to Coverage A, the OUTSTANDING BALANCE on the
date of DEFAULT, including principal and accrued interest from
the date of DEFAULT until the date that the OUTSTANDING
BALANCE is paid, plus interest on any advances of scheduled
monthly payments made by the INSURED from the date of DEFAULT,
plus advances and interest on advances for PROPERTY PROTECTION
actually paid by the INSURED pursuant to the COMMERCIAL REAL
ESTATE LOAN or, if applicable, a POOLING AND SERVICING
AGREEMENT. Such advances and interest on advances made for
PROPERTY PROTECTION are limited to ten (10) percent of the
OUTSTANDING BALANCE on the date of DEFAULT.
2. With respect to Coverage B, (a) monetary awards or settlements
of compensatory damages for BODILY INJURY, PROPERTY DAMAGE or
CLEAN-UP COSTS; (b) CLEAN-UP COSTS; and (c) costs, charges and
expenses incurred in the defense, investigation and adjustment
of CLAIMS.
3. With respect to Coverage C, CLEAN-UP COSTS.
N. NAMED INSURED means the party, person or entity named in Item 1 of the
Declarations.
O. NATURAL RESOURCE DAMAGE means physical injury to or destruction of,
including the resulting loss of value of, land, fish, wildlife, biota, air,
water, groundwater, drinking water supplies, and other such resources belonging
to, managed by, held in trust by, appertaining to, or otherwise controlled by
the United States (including the resources of the fishery conservation zone
established by the Magnuson-Stevens Fishery Conservation and Management Act (16
U.S.C. 1801 et seq.)), any state or local government, any foreign government,
any Indian tribe, or, if such resources are subject to a trust restriction on
alienation, any member of an Indian tribe.
P. OUTSTANDING BALANCE means the principal amount of outstanding
indebtedness owed to the INSURED as of the date of DEFAULT calculated pursuant
to the terms and conditions of the COMMERCIAL REAL ESTATE LOAN plus interest as
described in the definition of LOSS. OUTSTANDING BALANCE shall not include
penalties or other fees arising out of a DEFAULT.
Q. POLICY PERIOD means the period set forth in Item 2 of the Declarations
or any shorter period arising as a result of.
1. cancellation of this Policy; or
2. the deletion by the Company of a particular INSURED PROPERTY
at the NAMED INSURED'S written request, but solely with
respect to that INSURED PROPERTY.
R. POLLUTION CONDITIONS means:
1. with respect to Coverages A and C, the discharge, dispersal,
release or escape of any solid, liquid, gaseous or thermal
irritant or contaminant, including smoke, vapors, soot, fumes,
acids, alkalis, toxic chemicals, and waste materials into or
upon land, or any structure on land, the atmosphere or any
watercourse or body of water, including groundwater, in
concentrations or amounts exceeding maximum levels allowed by
applicable ENVIRONMENTAL LAWS, or by governmental or court
order or directive, acting under the authority granted by
ENVIRONMENTAL LAWS, provided such conditions are not naturally
present in the environment in the concentration or amounts
discovered.
2. with respect to Coverage B, the discharge, dispersal, release,
or escape of any solid, liquid, gaseous or thermal irritant or
contaminant, including smoke, vapors, soot, fumes, acids,
alkalis, toxic chemicals, and waste materials into or upon
land, or any structure on land, the atmosphere or any
watercourse or body of water, including groundwater, provided
such conditions are not naturally present in the environment
in the concentration or amounts discovered.
S. POOLING AND SERVICING AGREEMENT means the agreement governing the
servicing of the COMMERCIAL REAL ESTATE LOAN(S).
T. PROPERTY DAMAGE means:
1. Physical injury to or destruction of tangible property of
parties other than the INSURED, including the resulting loss
of use or diminution in value thereof;
2. LOSS of use, but not diminution in value, of tangible property
of parties other than the INSURED, which has not been
physically injured or destroyed:
3. NATURAL RESOURCE DAMAGE.
U. PROPERTY PROTECTION means reasonable expenses necessary to protect the
INSURED PROPERTY.
V. SERVICER means the party(ies) to the POOLING AND SERVICING AGREEMENT
responsible for servicing the COMMERCIAL REAL ESTATE Loan(s).
W. TRUSTEE means the trustee under the Pooling AND SERVICING AGREEMENT.
VII. EXTENDED REPORTING PERIOD - COVERAGE B
Solely with respect to Coverage B, the INSURED shall be entitled to an
Automatic Extended Reporting Period, and (with certain exceptions as described
in paragraph B. of this Section) entitled to purchase an Optional Extended
Reporting Period Endorsement upon termination of coverage as defined in
Paragraph B.3. of this Section. Neither the Automatic nor the Optional Extended
Reporting Period shall reinstate or increase the Policy Aggregate Limit of this
Policy.
A. AUTOMATIC EXTENDED REPORTING PERIOD
Provided the INSURED has not purchased any other insurance to
replace Coverage B which applies to a CLAIM otherwise covered under Coverage B,
the NAMED INSURED shall have a period of forty-five (45) days following the
effective date of termination of coverage in which to provide written notice to
the Company of CLAIMS first made and reported within the Automatic Extended
Reporting Period. A CLAIM first made and reported within the Automatic Extended
Reporting Period will be deemed made on the last day of the POLICY PERIOD,
provided the CLAIM arises from POLLUTION CONDITIONS that commenced before the
end of the POLICY PERIOD and is otherwise covered by this Policy. The Automatic
Extended Reporting Period shall not apply if the Optional Extended Reporting
Period becomes effective.
B. OPTIONAL EXTENDED REPORTING PERIOD
The NAMED INSURED shall be entitled to purchase an Optional Extended
Reporting Period upon termination of coverage, as defined in Paragraph 3. below,
except in the event of nonpayment of premium.
1. A CLAIM first made and reported within the Optional Extended
Reporting Period, if purchased in accordance with the
provisions contained in Paragraph 2 below, will be deemed to
have been made on the last day of the POLICY PERIOD, provided
that the CLAIM arises from POLLUTION CONDITIONS that commenced
before the end of the POLICY PERIOD and is otherwise covered
by this Policy.
2. The Company shall issue an endorsement providing an Optional
Extended Reporting Period of up to thirty-six (36) months from
termination of coverage under this Policy for any INSURED
PROPERTY provided that the NAMED Insured:
a. makes a written request for such endorsement which the
Company receives within forty-five (45) days after
termination of coverage as defined herein; and
b. pays the additional premium when due. If that additional
premium is paid when due, the Optional Extended
Reporting Period may not be canceled, provided that all
other terms and conditions of the Policy are met.
3. Termination of coverage occurs at the time of:
a. cancellation or nonrenewal of this Policy by the NAMED
INSURED or by the Company;
b. the Company's deletion from Item 5 of the Declarations
of this Policy of a location which was an INSURED
PROPERTY, at the INSURED'S written request, but solely
with respect to that INSURED PROPERTY.
4. The Optional Extended Reporting Period is available to the
NAMED INSURED for not more than 200% of the premium the
Company has charged for the INSURED PROPERTY for which the
Extended Reporting Period is purchased.
VIII. CONDITIONS
A. ASSIGNMENT - This Policy may not be assigned without the prior written
consent of the Company which consent shall not be unreasonably withheld.
Assignment of interest under this Policy shall not bind the Company until its
consent is endorsed thereon. However, this Policy may be assigned by the NAMED
INSURED, without the Company's prior written consent to the SERVICER or TRUSTEE,
or another entity which has, directly or indirectly, invested in or loaned money
in connection with an INSURED PROPERTY. The NAMED INSURED must provide the
Company written notice of such assignment within forty-five (45) days of the
effective date of the assignment.
B. SUBROGATION
1. To the extent of any payment under this Policy, the Company
shall be subrogated to all the INSURED'S rights of recovery
therefor against any person or organization, with the
exception of the BORROWER; provided that if the Company
indemnifies the INSURED for the OUTSTANDING BALANCE under
Coverage A, the Company reserves its right of FORECLOSURE
against the BORROWER.
2. The INSURED shall execute and deliver instruments and papers
and do whatever else is reasonably necessary to secure such
rights including without limitation, assignment of the
INSURED'S rights against any person or organization, with the
exception of the BORROWER, who caused POLLUTION CONDITIONS on
account of which the Company made any payment under this
Policy.
3. Any recovery as a result of subrogation proceedings shall
accrue first to the INSURED to the extent of any LOSS in
excess of the limit of coverage, then to the Company to the
extent of its payment under the policy, and then to the
INSURED to the extent of its Deductible. Expenses incurred in
such subrogation proceedings shall be apportioned among the
interested parties in the recovery in the proportion that each
interested party's share in the recovery bears to the total
recovery. Any recoveries received by the Company via
subrogation net of expenses incurred in making such recovery
shall serve to reinstate the "Total all LOSSes" limit of
liability stated in Item 3 of the Declarations, but only to
the extent of such net recovery.
4. The INSURED shall do nothing to prejudice the Company's rights
of Subrogation.
C. CHANGES - Notice to any agent or knowledge possessed by any agent or by
any other person shall not effect a waiver or a change in any part of this
Policy or estop the Company from asserting any right under the terms of this
Policy; nor shall the terms of this Policy be waived or changed, except by
endorsement issued to form a part of this Policy.
D. SOLE AGENT - The NAMED INSURED first listed in Item 1 of the
Declarations shall act on behalf of all other INSUREDS, if any, for the payment
or return of premium, receipt and acceptance of any endorsement issued to form a
part of this Policy, and giving and receiving notice of cancellation or
nonrenewal and the exercise of the rights provided in the EXTENDED REPORTING
PERIOD clause.
E. CANCELLATION - This Policy may be canceled by the INSURED by surrender
thereof to the Company or any of its authorized agents or by mailing to the
Company written notice stating when thereafter the cancellation shall be
effective.
This Policy may be canceled by the Company only for nonpayment of
premium by mailing to the NAMED INSURED at the address shown in the Policy,
written notice stating when not less than ten (10) days thereafter cancellation
shall be effective. Proof of mailing of notice described in this Condition E.
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. If the NAMED INSURED cancels, earned premium shall be computed in
accordance with the customary short rate table. If the Company cancels, earned
premium shall be computed pro rata. Premium adjustment may be either at the time
cancellation is effected or as soon as practicable after cancellation becomes
effective, but payment or tender of unearned premium is not a condition of
cancellation.
F. TERMINATION OF COVERAGE - In the event of the INSURED'S sale of a
COMMERCIAL REAL ESTATE LOAN, coverage under Coverages A and C will automatically
terminate as of the effective date of such sale for any INSURED PROPERTY
included in such sale. Coverage B, however, will continue for such INSURED
PROPERTY for the remainder of the POLICY PERIOD and EXTENDED REPORTING PERIOD,
if applicable.
G. CONCEALMENT OR FRAUD - This entire Policy shall be void if, whether
before or after LOSS is incurred or a CLAIM is first made, the INSURED has
willfully concealed or misrepresented any fact or circumstance in the Secured
Creditor Impaired Property Application material to the granting of coverage
under this Policy. In addition, coverage for any individual INSURED PROPERTY
shall be void if, whether before or after LOSS is incurred or a CLAIM is first
made, the INSURED has willfully concealed or misrepresented any fact or
circumstance material to the granting of coverage for the INSURED PROPERTY under
this Policy.
H. OTHER INSURANCE
1. Coverage A.
This insurance is primary. Our obligations are not affected by
any other insurance that may be primary.
2. Coverages B and C.
(a) This insurance is primary. Our obligations are not
affected unless any other insurance applicable to LOSS
covered by this Policy is also primary. Then, we will
share with all other insurance by the method described
in paragraphs (b) and (c) below.
(b) If other primary insurance permits contribution by equal
shares, we will follow this method also. Under this
approach each insurer contributes equal amounts until it
has paid its applicable limit of insurance or none of
the loss remains, whichever comes first.
(c) If any other insurance does not permit contribution by
equal shares, we will contribute by limits. Under this
method, each insurer's share is based on the ratio of
its applicable limit of insurance to the total
applicable limits of insurance of all primary insurers.
I. RIGHT OF ACCESS and INSPECTION - Any of the Company's authorized
representatives shall have the right and opportunity but not the obligation when
the Company so desires to interview persons employed by the INSURED and to
inspect at any reasonable time, during the POLICY PERIOD or thereafter, an
INSURED PROPERTY for which the INSURED holds title, and applicable records for
COMMERCIAL REAL ESTATE LOANS. Neither the Company nor its representatives shall
assume any responsibility or duty to the INSURED or to any other party, person
or entity, by reason of such right of inspection. Neither the Company's right to
make inspections, sample and monitor nor the actual undertaking thereof nor any
report thereon shall constitute an undertaking on behalf of the INSURED or
others, to determine or warrant that property or operations are safe, healthful
or conform to acceptable engineering practices or are in compliance with any
law, rule or regulation. The INSURED agrees to provide appropriate personnel to
assist the Company's representatives during any inspection.
J. REPRESENTATIONS - By acceptance of this Policy, the first NAMED INSURED
agrees that the statements in the Declarations and Secured Creditor Impaired
Property Application are its agreements and representations, that this Policy is
issued in reliance upon the truth of such representations and that this Policy
embodies all agreements existing between any INSURED and the Company or any of
its agents relating to this insurance.
K. ACTION AGAINST COMPANY - No person or organization has a right
under this Policy:
1. to join the Company as a party or otherwise bring the
Company into a suit asking for damages from an INSURED; or
2. to sue the Company on this Policy unless all of its terms
have been fully complied with.
A person or organization may sue the Company to recover on an agreed
settlement or on a final judgment against an INSURED obtained after an actual
trial; but the Company will not be liable for damages that are not payable under
the terms of this Policy or that are in excess of the applicable limit of
liability. An agreed settlement means a settlement and release of liability
signed by the Company, the INSURED and the claimant or the claimant's legal
representative.
L. BANKRUPTCY - Bankruptcy or insolvency of the INSURED or of the
INSURED'S estate shall not relieve the Company of any of its obligations
hereunder.
M. ARBITRATION - It is hereby understood and agreed that all disputes or
differences which may arise under or in connection with this Policy, whether
arising before or after termination of this Policy, including any determination
of the amount of LOSS, shall be submitted to the American Arbitration
Association under and in accordance with its then prevailing commercial
arbitration rules. The arbitrators shall be chosen in the manner and within the
time frames provided by such rules. If permitted under such rules, the
arbitrators shall be three disinterested individuals having knowledge of the
legal, corporate management, or insurance issues relevant to the matters in
dispute.
Any party may commence such arbitration proceeding and the
arbitration shall be conducted in New York, New York. The arbitrators shall give
due consideration to the general principles of New York law in the construction
and interpretation of the provisions of this Policy; provided, however, that the
terms, conditions, provisions and exclusions of this Policy are to be construed
in an evenhanded fashion as between the parties. Where the language of this
Policy is alleged to be ambiguous or otherwise unclear, the issue shall be
resolved in the manner most consistent with the relevant terms, conditions,
provisions or exclusions of the Policy (without regard to the authorship of the
language, the doctrine of reasonable expectation of the parties and without any
presumption or arbitrary interpretation or construction in favor of either party
or parties, and in accordance with the intent of the parties.)
The written decision of the arbitrators shall set forth its
reasoning, shall be provided simultaneously to both parties and shall be binding
on them. The arbitrators' award shall not include attorney fees or other costs.
Judgment on the award may be entered in any court of competent jurisdiction.
Each party shall bear equally the expenses of the arbitration.
N. SERVICE OF SUIT - Subject to Paragraph M. above, it is agreed that 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.
Nothing in this condition constitutes or should be understood to constitute a
waiver of the Company's rights to commence an action in any court of competent
jurisdiction in the United States, to remove an action to a United Stated
District Court, or to seek a transfer of a case to another court as permitted by
the laws of the United States or of any state in the United States. It is
further agreed that service of process in such suit may be made upon General
Counsel, Legal Department, American International Specialty Lines Insurance
Company, 70 Pine Street, New York, New York 10270, or his or her representative,
and that in any suit instituted against the Company upon this contract, the
Company will abide by the final decision of such court or of any appellate court
in the event of any appeal.
Further, pursuant to any statute of any state, territory, or
district of the United States which makes provision therefore, the Company
hereby designates the Superintendent, Commissioner, Director of Insurance, or
other officer specified for that purpose in the statute, or his or her successor
or successors in office 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 contract of
insurance, and hereby designates the above named General Counsel as the person
to whom the said officer authorized to mail such process or a true copy thereof.
O. SOLD LOANS - In the event a COMMERCIAL REAL ESTATE LOAN(S) is sold by
the INSURED, the Company agrees to offer coverage to the new owner of the
COMMERCIAL REAL ESTATE LOAN(S) identical to coverage provided the INSURED under
this Policy. The per INSURED PROPERTY premium to be charged to the new owner of
the COMMERCIAL REAL ESTATE LOAN(S) will be equal to the pro rata premium
applying to an INSURED PROPERTY as of the date of sale plus not more than $100
per INSURED PROPERTY. Additional premium may be charged to the new owner of the
COMMERCIAL REAL ESTATE LOAN for negotiated differences in terms and conditions,
including but not limited to, POLICY PERIOD, limits of liability and deductible.
P. LENDER LIABILITY - The existence of any legal protection for the
INSURED against liability of any kind whatsoever in connection with POLLUTION
CONDITIONS, including but not limited to the secured creditor exemption in
Section 9601(2) of the Comprehensive Environmental Response, Compensation and
Liability Act, 42 U.S.C. Sec. 9601 et seq., shall in no way affect the rights of
the INSURED under this Policy. Any failure of the INSURED to qualify for such
protection shall not in and of itself trigger Exclusion IV.E or in any other way
affect the rights of the INSURED under this Policy.
<PAGE>
IN WITNESS WHEREOF, the Company has caused this Policy to be signed by its
president and secretary and signed on the Declarations page by its duly
authorized representative or countersigned in states where applicable.
/S/ /S/
------------------------------------ ---------------------------------------
SECRETARY PRESIDENT
<PAGE>
AMERICAN INTERNATIONAL
SPECIALTY LINES INSURANCE COMPANY
A Capital Stock Insurance Company
175 Water Street, Twelfth Floor
New York, New York 10038
[LOGO OMITTED]
A Member
Company
of American
International
Group, Inc
NAMED INSURED: Wells Fargo Bank of Minnesota, N.A. as Trustee
for the registered holders of
Banc of America Commercial Mortgage Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2000-2
POST OFFICE: 11000 Broken Land Parkway
Columbia, MD 21044-3562
Attn: Corporate Trust Services (CMBS), Banc of America
Commercial Mortgage Inc., Series 2000-2
NOTICE: COVERAGE B PROVIDES CLAIMS-MADE-AND-REPORTED COVERAGE. PLEASE
READ CAREFULLY.
SECURED CREDITOR IMPAIRED PROPERTY POLICY
(PORTFOLIO)
DECLARATIONS
POLICY NUMBER: 341 73 30
ITEM 1: NAMED INSURED: Wells Fargo Bank of Minnesota, N.A. as Trustee
for the registered holders of
Banc of America Commercial Mortgage Inc.,
Commercial Mortgage Pass-Through Certificates, Series
2000-2
ADDRESS: 11000 Broken Land Parkway
Columbia, MD 21044-3562
Attn: Corporate Trust Services (CMBS), Banc of America
Commercial Mortgage Inc., Series 2000-2
ITEM 2: POLICY PERIOD: FROM 9/22/00 TO 9/22/17
12:01 A.M. Standard time at the address of the Named
Insured shown above.
ITEM 3: LIMITS OF LIABILITY: Each LOSS $12,500,000
Total all LOSSES $63,000,000
ITEM 4: DEDUCTIBLE: Each LOSS $0
ITEM 5: INSURED PROPERTY(IES): SEE SCHEDULE, OF INSURED PROPERTY ENDORSEMENT
ITEM 6: POLICY PREMIUM: $56,476
<PAGE>
BROKER: ENVIRONMENTAL CAPITAL INSURANCE BROKERAGE, INC.
226 LOWELL STREET, UNIT B-3B
WILMINGTON, MA 01887
ENDORSEMENTS: SEE FORMS SCHEDULE
/S/
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AUTHORIZED REPRESENTATIVE
or countersignature (in states where applicable)
Copyright, American International Group, Inc., 2000
NOTICE: THIS INSURANCE IS NOT LICENSED BY THE STATE OF NEW YORK
<PAGE>
FORMS SCHEDULE
--------------
NAMED INSURED: Wells Fargo Bank of Minnesota, N.A. as Trustee
for the registered holders of
Banc of America Commercial Mortgage Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2000-2
POLICY NO: 341 73 30
EFFECTIVE 12:01 AM: 9/22/00
FORM NAME FORM NUMBER
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AISLIC Secured Creditor Impaired Property Policy 75795 (2/00)
Declarations Page 75794 (2/00)
Insured Property Endorsement
Amendatory Endorsement
Asbestos and Lead Based Paint Endorsement
<PAGE>
ENDORSEMENT NO. 1
FORMS OF A PART OF POLICY NUMBER: 341 73 30
ISSUED TO: Wells Fargo Bank of Minnesota, N.A. as Trustee
for the registered holders of
Banc of America Commercial Mortgage Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2000-2
BY: American International Specialty Lines Insurance Company
SCHEDULE OF INSURED PROPERTIES
------------------------------
In consideration of premium paid, it is hereby agreed that the following
property is scheduled as an INSURED PROPERTY effective 12:01 a.m., 9/22/00 and
expires 12:01 a.m. 9/22/17
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ADDRESS CITY STATE ZIP
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1855 EAST ROSE AVE ORANGE CA 92867
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525 BAY AREA BLVD. HOUSTON TX 77058
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5310 WEST THUNDERBIRD ROAD GLENDALE AZ 85306
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1460 AND 1480 ROUTE 9 NORTH WOODBRIDGE NJ 07095
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1071 MARKET PLACE SAN RAMON CA 94583
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950 WALNUT HILL LANE IRVING TX 75038
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11401 REED HARTMAN HIGHWAY BLUE ASH OH 45241
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500 SOUTH SEPULVEDA BOULEVARD LOS ANGELES CA 90049
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4900 AMPERE DRIVE RENO NV 89502
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9718 E. SPRAGUE AVE. SPOKANE WA 92204
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6555 QUINCE ROAD MEMPHIS TN 38119
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2001 NORTH LAMAR STREET DALLAS TX 75202
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4305 DUVAL STREET AUSTIN TX 78751
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175 ADMIRAL COCHRANE DRIVE ANNAPOLIS MD 21401
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4100 OLD MILTON PARKWAY ALPHARETTA GA 30005
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3075 PROSPECT PARK DRIVE RANCHO CORDOVA CA 95670
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700 ELLINWOOD WAY PLEASANT HILL CA 94523
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3400 EAST LAKE ROAD PALM HARBOR FL 34677
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4800 TEXAS BLVD. TEXARKANA TX 75503
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52 DUANE STREET NEW YORK NY 10007
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1775 ANDOVER ST. TEWKSBURY MA 01876
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5932, 5940, 5960, 6008, 6020 & 1070 BELL ROAD GLENDALE AZ 85308
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100 SOUTH BEDFORD ROAD MOUNT KISCO NY 10549
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1741 BUSINESS CENTER DRIVE RESTON VA 20190
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5050 WESTHEIMER ROAD HOUSTON TX 77056
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3010 AND 3020 WOODCREEK DRIVE DOWNERS GROVE IL 60515
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301 N. MARKET STREET DALLAS TX 75202
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16605 BIRKDALE COMMONS PARKWAY HUNTERSVILLE NC 28078
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1720 EPPS BRIDGE ROAD ATHENS GA 30606
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100 HILLWOOD TERRACE VERONA NJ 07044
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/S/
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AUTHORIZED REPRESENTATIVE
or countersignature (where required by law)
<PAGE>
ENDORSEMENT NO. 2
THIS ENDORSEMENT, EFFECTIVE 12:01 AM, 9/22/00
FORMS A PART OF POLICY NO.: 341 73 30
ISSUED TO: Wells Fargo Bank of Minnesota, N.A. as Trustee
for the registered holders of
Banc of America Commercial Mortgage Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2000-2
BY: American International Specialty Lines Insurance Company
SECURED CREDITOR IMPAIRED PROPERTY ENDORSEMENT
----------------------------------------------
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY
It is hereby agreed that the Policy is amended as follows:
1. Section II. NOTICE REQUIREMENTS AND CLAIM PROVISIONS, paragraph A. is
deleted in its entirety and replaced with the following:
A. The INSURED shall give written notice to the Company, as soon as
possible but not later than forty-five (45) days after the INSURED first
learns of the DEFAULT and POLLUTION CONDITIONS with respect to Coverage A,
a CLAIM with respect to Coverage B, or POLLUTION CONDITIONS with respect
to Coverage C to:
Manager, Pollution Insurance Products Unit
AIG Technical Services, Inc.
Environmental Claims Department
80 Pine Street, Sixth Floor
New York, New York 10005
and
Division Attorney - Pollution Legal Liability
Commerce and Industry Insurance Company
175 Water Street
New York, New York 10038
or other address(es) as substituted by the Company in writing.
2. Section III. DUTIES OF THE INSURED IN THE EVENT OF LOSS, paragraph A is
deleted in its entirety and replaced with the following:
A. The INSURED shall furnish the following to the Company as soon as
available and practicable after the INSURED first learns of the DEFAULT
and POLLUTION CONDITIONS with respect to Coverage A, a CLAIM with respect
to Coverage B, or POLLUTION CONDITIONS with respect to Coverage C:
1. all correspondence between the INSURED and any claimant;
2. all demands, summons, notices or other processes or papers
filed with a court of law, administrative agency or
investigative body;
3. all technical reports, laboratory data, field notes or any
other documents generated by persons hired by the INSURED to
investigate or remediate POLLUTION CONDITIONS;
4. all expert reports, investigations arid data collected by
experts retained by the INSURED, whether or not the INSURED
intends to use the material for any purpose;
5. all other information developed or discovered by the INSURED
concerning the DEFAULT and POLLUTION CONDITIONS, or LOSS.
3. Section IV. EXCLUSIONS, paragraph G is deleted in its entirety and
replaced with the following:
G. arising from POLLUTION CONDITIONS existing prior to the effective
date of coverage for an INSURED Property if as of such date the INSURED
knew that such POLLUTION CONDITIONS could give rise to a LOSS under this
Policy and failed to disclose such POLLUTION CONDITIONS to the Company, or
the Company did not otherwise learn of such POLLUTION CONDITIONS from
engineering reports, environmental spreadsheets, the Secured Creditor
Impaired Property Questionnaire, or from other technical reports the
Company obtained independently.
4. Section VI. DEFINITIONS, paragraph D. CLEAN-UP COSTS, F. DEFAULT, and R.
POLLUTION CONDITIONS are deleted in their entirety and replaced with the
following, respectively:
D. CLEAN-UP COSTS means expenses, including reasonable and necessary
legal expenses incurred with the Company's written consent which consent
shall not be unreasonably withheld or delayed, incurred in the
investigation (including remedial studies and design), removal,
remediation (including the associated monitoring), or disposal of soil,
surfacewater, groundwater or other contamination:
(1) to the extent required by ENVIRONMENTAL LAWS, or by court
order or directive, the government or any political
subdivision of the United States of America or any state
thereof, or Canada; or
(2) which have been actually incurred by the government or any
political subdivision of the United States of America or any
state thereof, or Canada or any province thereof, or by third
parties.
F. DEFAULT means the failure of a BORROWER to make any part of a
scheduled, periodic or final payment by the due date under the COMMERCIAL
REAL ESTATE LOAN or the BORROWER'S failure to comply with items designated
as the causes or events of default as provided by the terms of the
COMMERCIAL REAL ESTATE LOAN. The DEFAULT shall be deemed to occur on the
day after such due date under the COMMERCIAL REAL ESTATE LOAN provided
that the DEFAULT was not cured within the applicable grace period as
provided by the terms of the COMMERCIAL REAL ESTATE LOAN.
R. POLLUTION CONDITIONS means:
(1) with respect to Coverages A and C, the discharge,
dispersal, release or escape of any solid, liquid, gaseous or
thermal irritant or contaminant, including smoke, vapors, soot,
fumes, acids, alkalis, toxic chemicals, hazardous substances, and
waste materials into or upon land, or any structure on land, the
atmosphere or any watercourse or body of water, including
groundwater, resulting in concentrations or amounts exceeding
maximum levels allowed by applicable ENVIRONMENTAL LAWS, or by
governmental or court order or directive, acting under the authority
granted by ENVIRONMENTAL LAWS, provided such conditions are not
naturally present in the environment in the concentration or amounts
discovered.
(2) with respect to Coverage B, the discharge, dispersal,
release, or escape of any solid, liquid, gaseous or thermal irritant
or contaminant, Including smoke, vapors, soot, fumes, acids,
alkalis, toxic chemicals, and waste materials into or upon land, or
any structure on land, the atmosphere or any watercourse or body of
water, including groundwater, provided such conditions are not
naturally present in the environment in the concentration or amounts
discovered.
5. Section VIII. CONDITIONS, paragraph A. ASSIGNMENT is deleted in its
entirety and replaced with the following:
A. ASSIGNMENT - This Policy may not be assigned without the prior
written consent of the Company which consent shall not be unreasonably
withheld. Assignment of interest under this Policy shall not bind the
Company until its consent is endorsed thereon. However, this Policy may be
assigned by the NAMED INSURED, without the Company's prior written consent
to a SERVICER or TRUSTEE, or another entity which has, directly or
Indirectly, invested in or loaned money in connection with en INSURED
PROPERTY. The NAMED INSURED must provide the Company written notice of
such assignment within forty-five (45) days of the effective date of the
assignment.
All other terms, conditions and exclusions shall remain the same.
/S/
-----------------------------------------------
AUTHORIZED REPRESENTATIVE
or countersignature (in states where applicable)
<PAGE>
ENDORSEMENT NO. 3
THIS ENDORSEMENT, EFFECTIVE 12:01 A.M.: 9/22/00
FORMS A PART OF POLICY NO.: 341 73 30
ISSUED TO: Wells Fargo Bank of Minnesota, N.A. as Trustee
for the registered holders of
Banc of America Commercial Mortgage Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2000-2
BY: American International Specialty Lines Insurance Company
AMENDATORY ENDORSEMENT
----------------------
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.
It is hereby agreed that Paragraphs J & K of SECTION IV. EXCLUSIONS are
deleted in their entirety and replaced with the following:
J. arising from the presence of asbestos or asbestos-containing materials
installed in or on any building or other structure. With the exception of
residential properties, this exclusion shall not apply to CLAIMS for
BODILY INJURY or government mandated CLEAN-UP COSTS on any INSURED
PROPERTY.
K. arising from the presence of lead-based paint applied to any real or
personal property on or under an INSURED PROPERTY. With the exception of
residential properties, this exclusion shall not apply to CLAIMS for
BODILY INJURY or government mandated CLEAN-UP COSTS on any INSURED
PROPERTY.
/S/
-------------------------------------------
AUTHORIZED REPRESENTATIVE
or countersignature (where required by law)
<PAGE>
AMERICAN INTERNATIONAL SPECIALTY LINES INSURANCE COMPANY
SECURED CREDITOR IMPAIRED PROPERTY POLICY
THIS POLICY HAS CERTAIN PROVISIONS AND REQUIREMENTS UNIQUE TO IT AND MAY
BE DIFFERENT FROM OTHER POLICIES THE INSURED MAY HAVE PURCHASED. PLEASE READ THE
ENTIRE POLICY CAREFULLY TO DETERMINE THE INSURED'S RIGHTS AND DUTIES, AND WHAT
IS AND IS NOT COVERED. VARIOUS PROVISIONS THROUGHOUT THIS POLICY RESTRICT OR
EXCLUDE COVERAGE.
COVERAGE IS AFFORDED ONLY FOR THOSE INSURED PROPERTIES SCHEDULED ON THE
POLICY.
DEFINED TERMS APPEAR IN BOLD FACE TYPE.
In consideration of the payment of the premium, in reliance upon the
statements in the Declarations and Secured Creditor Impaired Property
Application incorporated by reference and made a part hereof, and pursuant to
all of the terms of this Policy, the Company agrees with the INSURED as follows:
I. INSURING AGREEMENT
A. COVERAGE A - DEFAULT AND POLLUTION CONDITIONS
The Company will indemnify the INSURED for LOSS, if during the
POLICY PERIOD and prior to FORECLOSURE, there is a DEFAULT by a BORROWER on a
COMMERCIAL REAL ESTATE LOAN secured by an INSURED PROPERTY, LEASEHOLD or FIXED
ASSETS, and there are POLLUTION CONDITIONS on, under or emanating from the same
INSURED PROPERTY prior to or while the COMMERCIAL REAL ESTATE LOAN is in
DEFAULT.
B. COVERAGE B - THIRD-PARTY CLAIMS
The Company agrees to pay LOSS on behalf of the INSURED that the
INSURED becomes legally obligated to pay as a result of CLAIMS first made
against the INSURED and reported to the Company, in writing, during the POLICY
PERIOD, for BODILY INJURY, PROPERTY DAMAGE or CLEAN-UP COSTS resulting from
POLLUTION CONDITIONS on, under or emanating from an INSURED PROPERTY.
C. COVERAGE C - CLEAN-UP OF POLLUTION CONDITIONS
The Company agrees to pay LOSS on behalf of the INSURED, after
FORECLOSURE, if CLEAN-UP COSTS are sustained because there are POLLUTION
CONDITIONS on, under or emanating from the INSURED PROPERTY during the POLICY
PERIOD provided that where required, such POLLUTION CONDITIONS have been
reported by the INSURED to the appropriate governmental agency in compliance
with applicable ENVIRONMENTAL LAWS, in effect as of the date of discovery
D. LEGAL EXPENSE AND DEFENSE - COVERAGE B
The Company shall have the right and duty to investigate and defend
any CLAIM described in Coverage B. The Company's duty to defend or continue
defending any such CLAIM, and to pay any LOSS, shall cease once the applicable
limit of coverage, as described in Section V. LIMITS OF COVERAGE; DEDUCTIBLE has
been exhausted. Investigation and defense costs, charges and expenses are
included in LOSS, reduce the applicable limit of liability, and are included
within the Deductible amount shown in Item 4 of the Declarations.
Copyright, American International Group, Inc., 2000
<PAGE>
E. INDEPENDENT COUNSEL - COVERAGE B
If the INSURED is entitled by law to select independent counsel to
defend the INSURED at the Company's expense, the attorney fees and all other
litigation expenses the Company must pay to that counsel are limited to the
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
competency, including experience in defending CLAIMS or suits similar to the one
pending against the INSURED and to require such counsel to have errors and
omissions insurance coverage. As respects to such counsel, the INSURED agrees
that counsel will timely respond to the Company's request for information
regarding the CLAIM.
Furthermore, the INSURED may at any time, by its signed consent,
freely and fully waive its rights to select independent counsel.
II. NOTICE REQUIREMENTS AND CLAIM PROVISIONS
It is a condition precedent to any rights afforded under this Policy
that the INSURED provide the Company with notice of DEFAULT and POLLUTION
CONDITIONS, or LOSS as follows:
A. The INSURED shall give written notice to the Company, as soon as
possible but not later than forty-five (45) days after the INSURED first learns
of the DEFAULT and POLLUTION CONDITIONS, or LOSS to:
Manager, Pollution Insurance Products Unit
AIG Technical Services, Inc.
Environmental Claims Department
80 Pine Street, Sixth Floor
New York, New York 10005
and
Division Attorney - Pollution Legal Liability
American International Specialty Lines Insurance Company
175 Water Street, Twelfth Floor
New York New York 10038
or other address(es) as substituted by the Company in writing.
B. The notice shall include, at a minimum, information sufficient to
identify the INSURED, the INSURED PROPERTY, the names of the persons with
knowledge regarding the time, place, cause, nature of and other circumstances of
the DEFAULT and POLLUTION CONDITIONS, or LOSS.
C. The notice may be provided only by the INSURED and may not be delegated
to third parties. It is not a defense to this condition precedent that the
Company learned of the DEFAULT and POLLUTION CONDITIONS, or LOSS through any
independent means.
III. DUTIES OF THE INSURED IN THE EVENT OF LOSS
A. The INSURED shall furnish the following to the Company as soon as
available and practicable after the INSURED first learns of the DEFAULT and
POLLUTION CONDITIONS, or LOSS:
1. all correspondence between the INSURED and any claimant;
Copyright, American International Group, Inc., 2000
<PAGE>
2. all demands, summons, notices or other processes or papers
filed with a court of law, administrative agency or
investigative body;
3. all technical reports, laboratory data, field notes or any
other documents generated by persons hired by the INSURED to
investigate or remediate POLLUTION CONDITIONS;
4. all expert reports, investigations and data collected by
experts retained by the INSURED, whether or not the INSURED
intends to use the material for any purpose;
5. all other information developed or discovered by the Insured
concerning the DEFAULT and POLLUTION CONDITIONS, or LOSS.
B. No INSURED shall voluntarily enter into any settlement, make any
payment, assume any obligation, or incur any costs, charges or expenses in the
defense or investigation of a CLAIM without the Company's consent, which shall
not be unreasonably withheld or delayed, except at the INSURED'S own cost, or in
response to an emergency or pursuant to ENVIRONMENTAL LAWS which require
immediate remediation of POLLUTION CONDITIONS.
C. If the INSURED refuses to consent to any settlement within the limits
of coverage of this Policy recommended by the Company and acceptable to the
claimant, the Company's duty to defend the INSURED shall then cease and the
INSURED shall thereafter negotiate or defend such CLAIM independently of the
Company and the Company's liability shall not exceed the amount, less the
Deductible or any outstanding Deductible balance, for which the CLAIM could have
been settled If such recommendation was consented to.
D. The INSURED must cooperate with the Company and offer all reasonable
assistance in the investigation and defense of CLAIMS. The Company may require
that the INSURED submit to examination under oath, and attend hearings,
depositions and trials. In the course of investigation or defense, the Company
may require written statements or the INSURED'S attendance at meetings with the
Company. The INSURED must reasonably assist the Company in effecting settlement,
securing and providing evidence and obtaining the attendance of witnesses, all
without charge to the Company.
IV. EXCLUSIONS
This Policy does not apply to LOSS:
A. due to or for any punitive, exemplary or multiplied portion of multiple
damages or any civil or administrative fines, penalties or assessments, except
where such damages, fines, penalties or assessments are insurable by applicable
law; or any criminal fines, penalties or assessments.
B. arising as a result of liability of others assumed by the INSURED
under any contract or agreement, unless the liability of the INSURED would
have attached in the absence of such contract or agreement.
C. arising out of any obligation of the INSURED under any worker's
compensation, unemployment compensation or disability benefits law or similar
law.
D. arising from BODILY INJURY to an employee of the INSURED or its parent,
subsidiary or affiliate arising out of and in the course of employment by the
INSURED or its parent, subsidiary or affiliate. This exclusion applies (1)
whether the INSURED may be liable as an employer or in any other capacity; and
(2) to any obligation to share damages with or repay third parties that must pay
damages because of this injury.
E. arising from POLLUTION CONDITIONS resulting from or attributable to the
INSURED'S intentional, knowing, willful or deliberate noncompliance with any
statute, regulation, ordinance, administrative complaint, notice of violation,
notice letter, executive order, or instruction of any governmental agency or
body.
Copyright, American International Group, Inc., 2000
<PAGE>
F. arising from POLLUTION CONDITIONS resulting from an intentionally
illegal act or omission of the INSURED, if the INSURED knew that the
POLLUTION CONDITIONS would result.
G. arising from POLLUTION CONDITIONS existing prior to the effective date
of coverage for an INSURED PROPERTY, and not otherwise specifically excluded by
endorsement to this Policy, if as of such date the INSURED knew that such
POLLUTION CONDITIONS could give rise to a LOSS under this Policy and failed to
disclose such POLLUTION CONDITIONS to the Company, or the Company did not
otherwise learn of such POLLUTION CONDITIONS from engineering reports,
environmental spreadsheets, the Secured Creditor Impaired Property
Questionnaire, or from other technical reports the Company obtained
independently.
H. by one INSURED against any other person or entity who is also an
INSURED under this Policy.
I. for costs, charges or expenses incurred by the INSURED for goods
supplied or services performed by the staff or salaried employees of the
INSURED, or its parent, subsidiary or affiliate, unless such costs, charges or
expenses are incurred with the prior written approval of the Company in its sole
discretion.
J. arising from the presence of asbestos or any asbestos-containing
materials installed in or on any building or other structure.
K. arising from the presence of lead-based paint applied to any real
or personal property on or under an INSURED PROPERTY.
V. LIMITS OF COVERAGE; DEDUCTIBLE
Regardless of the number of POLLUTION CONDITIONS, INSUREDS, CLAIMS, LOSSES
or claimants under this Policy, the following limits of coverage apply:
A. POLICY AGGREGATE LIMIT
The Company's total liability for all LOSS covered under this Policy
shall not exceed the "Total all LOSSes" stated in Item 3 of the Declarations.
The purchase of an Extended Reporting Period pursuant to Section VII. of this
Policy shall not serve to reinstate or increase the "Total all LOSSes".
B. EACH LOSS LIMIT
Subject to and included in the limit of liability described in
Paragraph A. above, the most the Company will pay in excess of the deductible
amount shown in Item 4 of the Declarations for each LOSS under Coverage A and B,
and for all CLEAN-UP COSTS arising from the same, continuous or related
POLLUTION CONDITIONS under Coverage C, is the "Each LOSS" limit of liability
shown in Item 3 of the Declarations.
C. RELATED POLLUTION CONDITIONS
1. Solely with respect to Coverage B, if a Claim for BODILY INJURY,
PROPERTY DAMAGE or CLEAN-UP COSTS is first made against the INSURED and reported
to the Company during this POLICY PERIOD, all CLAIMS for BODILY INJURY, PROPERTY
DAMAGE or CLEAN-UP COSTS arising from the same, continuous or related POLLUTION
CONDITIONS, which are made against the INSURED and reported under a subsequent
Secured Creditor Impaired Property Policy issued by the Company or its
affiliate, shall be deemed to have been first made and reported under this
Policy and shall be subject to the Limits of Liability under this Policy.
Coverage under this Policy for such CLAIMS made against the INSURED
and reported under a subsequent Secured Creditor Impaired Property Policy as
described in Paragraph 1. above, shall not apply unless at the time such CLAIMS
are first made and reported the INSURED has maintained with the Company or its
affiliate
Copyright, American International Group, Inc., 2000
<PAGE>
Secured Creditor Impaired Property coverage substantially the same as this
coverage on a successive, uninterrupted basis since the first such CLAIM was
made against the INSURED and reported to the Company.
2. All LOSS arising from the same, continuous, or related POLLUTION
CONDITIONS shall be subject to one "Each LOSS" limit of liability. In the event
coverage is provided under more than one of Coverages A, B and C, only one Each
LOSS" limit stated in Item 3 of the Declarations shall apply.
D. DEDUCTIBLE
Subject to Section V. LIMITS OF COVERAGE; DEDUCTIBLE, Paragraphs A.,
and B. above, this Policy is to pay all LOSS in excess of the "Each LOSS"
Deductible amount stated in Item 4 of the Declarations. The Deductible amount
includes investigation and defense costs, charges and expenses, and applies to
all LOSS arising from the same, related or continuous POLLUTION CONDITIONS.
The INSURED shall promptly reimburse the Company for advancing any
payment of LOSS falling within the Deductible.
VI. DEFINITIONS
A. BODILY INJURY means physical injury, sickness, disease, mental anguish
or emotional distress sustained by any person, including death resulting
therefrom.
B. BORROWER means any obligor on a COMMERCIAL REAL ESTATE LOAN, including
without limitation, any guarantor therefor, the holder of any ownership interest
in an INSURED PROPERTY and any other person, entity or organization controlled
by or under common control of the obligor.
C. CLAIM means a written demand received by the INSURED seeking a remedy
and alleging liability or responsibility on the part of the INSURED for LOSS
under Coverage B.
D. CLEAN-UP COSTS means expenses, including reasonable and necessary legal
expenses, incurred with the Company's written consent, incurred in the
investigation (including remedial studies and design), removal, remediation
(including the associated monitoring), or disposal of soil, surfacewater,
groundwater or other contamination:
(1) to the extent required by ENVIRONMENTAL LAWS, or specifically
mandated by court order, the government or any political
subdivision of the United States of America or any state
thereof, or Canada; or
(2) which have been actually incurred by the government or any
political subdivision of the United States of America or any
state thereof, or Canada or any province thereof, or by third
parties.
E. COMMERCIAL REAL ESTATE LOAN means an obligation evidenced by loan
documents which is secured by the INSURED PROPERTY, LEASEHOLD or FIXED ASSETS as
scheduled in Item 5 of the Declarations, and in which loan documents the INSURED
relies upon such INSURED PROPERTY, LEASEHOLD or FIXED ASSETS as security for the
loan and obtains a perfected mortgage or oilier security interest.
F. DEFAULT means the failure of a BORROWER to make any part of a
scheduled, periodic or final payment by the due date under the COMMERCIAL REAL
ESTATE LOAN or the BORROWER'S failure to comply with items designated as the
causes or events of default as provided by the terms of the COMMERCIAL REAL
ESTATE LOAN. The DEFAULT shall be deemed to occur on the day after such due date
under the COMMERCIAL REAL ESTATE LOAN provided that the DEFAULT was not cured
within the applicable grace period as provided by the terms of the COMMERCIAL
REAL
Copyright, American International Group, Inc., 2000
<PAGE>
ESTATE LOAN. For purposes of this Policy, the mere presence of a POLLUTION
CONDITION shall not be deemed a cause or event of default.
G. ENVIRONMENTAL LAWS means any federal, state or local laws (including
but not limited to statutes, regulations, rules, ordinances, guidance documents,
and governmental or administrative orders and directives) which are applicable
to POLLUTION CONDITIONS.
H. FIXED ASSETS means fixtures, plant and equipment at or on an
INSURED PROPERTY owned by the BORROWER, which are depreciated over their
useful life.
I. FORECLOSURE means taking title to an interest in the INSURED PROPERTY,
LEASEHOLD or FIXED ASSETS through the enforcement of a lien, mortgage, deed of
trust or other secured interest under a COMMERCIAL REAL ESTATE LOAN, whether
through legal proceedings or otherwise.
J. INSURED means the NAMED INSURED, TRUSTEE or SERVICER, and any director,
officer, partner or employee thereof while acting within the scope of his or her
duties as such, and any such additional INSURED added by endorsement to this
Policy.
K. INSURED PROPERTY means the real property, including any FIXED
ASSETS or LEASEHOLD, scheduled in Item 5. of the Declarations on the date of
the LOSS.
L. LEASEHOLD means the BORROWER'S right to possession of leased
INSURED PROPERTY pursuant to a written lease agreement.
M. LOSS means:
1. With respect to Coverage A, the OUTSTANDING BALANCE on the
date of DEFAULT, including principal and accrued interest from
the date of DEFAULT until the date that the OUTSTANDING
BALANCE is paid, plus interest on any advances of scheduled
monthly payments made by the INSURED from the date of DEFAULT,
plus advances and interest on advances for PROPERTY PROTECTION
actually paid by the INSURED pursuant to the COMMERCIAL REAL
ESTATE LOAN or, if applicable, a POOLING AND SERVICING
AGREEMENT. Such advances and interest on advances made for
PROPERTY PROTECTION are limited to ten (10) percent of the
OUTSTANDING BALANCE on the date of DEFAULT.
2. With respect to Coverage B, (a) monetary awards or settlements
of compensatory damages for BODILY INJURY, PROPERTY DAMAGE or
CLEAN-UP COSTS; (b) CLEAN-UP COSTS; and (c) costs, charges and
expenses incurred in the defense, Investigation and adjustment
of CLAIMS.
3. With respect to Coverage C, CLEAN-UP COSTS.
N. NAMED INSURED means the party, person or entity named in Item 1 of the
Declarations.
O. NATURAL RESOURCE DAMAGE means physical injury to or destruction of,
including the resulting loss of value of, land, fish, wildlife, biota, air,
water, groundwater, drinking water supplies, and other such resources belonging
to, managed by, held in trust by, appertaining to, or otherwise controlled by
the United States (including the resources of the fishery conservation zone
established by the Magnuson-Stevens Fishery Conservation and Management Act (16
U.S.C. 1801 et seq.)), any state or local government, any foreign government,
any Indian tribe, or, if such resources are subject to a trust restriction on
alienation, any member of an Indian tribe.
P. OUTSTANDING BALANCE means the principal amount of outstanding
indebtedness owed to the INSURED as of the date of DEFAULT calculated pursuant
to the terms and conditions of the COMMERCIAL REAL ESTATE
Copyright, American International Group, Inc., 2000
<PAGE>
LOAN plus interest as described in the definition of LOSS. OUTSTANDING BALANCE
shall not include penalties or other fees arising out of a DEFAULT.
Q. POLICY PERIOD means the period set forth in Item 2 of the
Declarations or any shorter period arising as a result of:
1. cancellation of this Policy; or
2. the deletion by the Company of a particular INSURED PROPERTY
at the NAMED INSURED'S written request, but solely with
respect to that INSURED PROPERTY.
R. POLLUTION CONDITIONS means:
1. with respect to Coverages A and C, the discharge, dispersal,
release or escape of any solid, liquid, gaseous or thermal
irritant or contaminant, including smoke, vapors, soot, fumes,
acids, alkalis, toxic chemicals, and waste materials into or
upon land, or any structure on land, the atmosphere or any
watercourse or body of water, including groundwater, in
concentrations or amounts exceeding maximum levels allowed by
applicable ENVIRONMENTAL LAWS, or by governmental or court
order or directive, acting under the authority granted by
ENVIRONMENTAL LAWS, provided such conditions are not naturally
present in the environment in the concentration or amounts
discovered.
2. with respect to Coverage B, the discharge, dispersal, release,
or escape of any solid, liquid, gaseous or thermal irritant or
contaminant, including smoke, vapors, soot, fumes, acids,
alkalis, toxic chemicals, and waste materials into or upon
land, or any structure on land, the atmosphere or any
watercourse or body of water, including groundwater, provided
such conditions are not naturally present in the environment
in the concentration or amounts discovered.
S. POOLING AND SERVICING AGREEMENT MEANS THE AGREEMENT GOVERNING THE
SERVICING OF THE COMMERCIAL REAL ESTATE LOAN(S).
T. PROPERTY DAMAGE means:
1. Physical injury to or destruction of tangible property of
parties other than the INSURED, including the resulting loss
of use or diminution in value thereof;
2. LOSS of use, but not diminution in value, of tangible property
of parties other than the INSURED, which has not been
physically injured or destroyed;
3. NATURAL RESOURCE DAMAGE.
U. PROPERTY PROTECTION means reasonable expenses necessary to protect the
INSURED PROPERTY.
V. SERVICER means the party(ies) to the POOLING AND SERVICING AGREEMENT
responsible for servicing the COMMERCIAL REAL ESTATE LOAN(S).
W. TRUSTEE means the trustee under the POOLING AND SERVICING AGREEMENT.
VII. EXTENDED REPORTING PERIOD - COVERAGE B
Solely with respect to Coverage B, the INSURED shall be entitled to an
Automatic Extended Reporting Period, and (with certain exceptions as described
in paragraph B. of this Section) entitled to purchase an Optional
Copyright, American International Group, Inc., 2000
<PAGE>
Extended Reporting Period Endorsement upon termination of coverage as defined in
Paragraph B.3. of this Section. Neither the Automatic nor the Optional Extended
Reporting Period shall reinstate or increase the Policy Aggregate Limit of this
Policy.
A. AUTOMATIC EXTENDED REPORTING PERIOD
Provided the INSURED has not purchased any other insurance to replace
Coverage B which applies to a CLAIM otherwise covered under Coverage B, the
NAMED INSURED shall have a period of forty-five (45) days following the
effective date of termination or coverage in which to provide written notice to
the Company of CLAIMS first made and reported within the Automatic Extended
Reporting Period. A CLAIM first made and reported within the Automatic Extended
Reporting Period will be deemed made on the last day of the POLICY PERIOD,
provided the CLAIM arises from POLLUTION CONDITIONS that commenced before the
end of the POLICY PERIOD and is otherwise covered by this Policy. The Automatic
Extended Reporting Period shall not apply if the Optional Extended Reporting
Period becomes effective.
B. OPTIONAL EXTENDED REPORTING PERIOD
The NAMED INSURED shall be entitled to purchase an Optional Extended
Reporting Period upon termination of coverage, as defined in Paragraph 3. below,
except in the event of nonpayment of premium.
1. A CLAIM first made and reported within the Optional Extended
Reporting Period, if purchased in accordance with the provisions contained in
Paragraph 2 below, will be deemed to have been made on the last day of the
POLICY PERIOD, provided that the CLAIM arises from POLLUTION CONDITIONS that
commenced before the end of the POLICY PERIOD and is otherwise covered by this
Policy.
2. The Company shall issue an endorsement providing an Optional
Extended Reporting Period of up to thirty-six (36) months from termination of
coverage under this Policy for any INSURED PROPERTY provided that the NAMED
INSURED:
a. makes a written request for such endorsement which the
Company receives within forty-five (45) days after
termination of coverage as defined herein; and
b. pays the additional premium when due. If that additional
premium is paid when due, the Optional Extended
Reporting Period may not be canceled, provided that all
other terms and conditions of the Policy are met.
3. Termination of coverage occurs at the time of:
a. cancellation or nonrenewal of this Policy by the NAMED
INSURED or by the Company;
b. the Company's deletion from Item 5 of the Declarations
of this Policy of a location which was an INSURED
PROPERTY, at the INSURED's written request, but solely
with respect to that INSURED PROPERTY.
4. The Optional Extended Reporting Period is available to the NAMED
INSURED for not more than 200% of the premium the Company has charged for the
INSURED PROPERTY for which the Extended Reporting Period is purchased.
VIII. CONDITIONS
A. ASSIGNMENT - This Policy may not be assigned without the prior written
consent of the Company which consent shall not be unreasonably withheld.
Assignment of interest under this Policy shall not bind the
Copyright, American International Group, Inc., 2000
<PAGE>
Company until its consent is endorsed thereon. However, this Policy may be
assigned by the NAMED INSURED, without the Company's prior written consent to
the SERVICER or TRUSTEE, or another entity which has, directly or indirectly,
invested in or loaned money in connection with an INSURED PROPERTY. The NAMED
INSURED must provide the Company written notice of such assignment within
forty-five (45) days of the effective date of the assignment.
B. SUBROGATION
1. To the extent of any payment under this Policy, the Company shall
be subrogated to all the INSURED'S rights of recovery therefor against any
person or organization, with the exception of the BORROWER; provided that if the
Company indemnifies the INSURED for the OUTSTANDING BALANCE under Coverage A,
the Company reserves its right of FORECLOSURE against the Borrower.
2. The INSURED shall execute and deliver instruments and papers and
do whatever else is reasonably necessary to secure such rights including without
limitation, assignment of the INSURED'S rights against any person or
organization, with the exception of the BORROWER, who caused POLLUTION
CONDITIONS on account of which the Company made any payment under this Policy.
3. Any recovery as a result of subrogation proceedings shall accrue
first to the INSURED to the extent of any LOSS in excess of the limit of
coverage, then to the Company to the extent of its payment under the policy, and
then to the INSURED to the extent of its deductible. Expenses incurred in such
subrogation proceedings shall be apportioned among the interested parties in the
recovery in the proportion that each interested party's share in the recovery
bears to the total recovery. Any recoveries received by the Company via
subrogation net of expenses incurred in making such recovery shall serve to
reinstate the "Total all LOSSes" limit of liability stated in Item 3 of the
Declarations, but only to the extent of such net recovery.
4. The INSURED shall do nothing to prejudice the Company's rights of
Subrogation.
C. CHANGES - Notice to any agent or knowledge possessed by any agent or by
any other person shall not effect a waiver or a change in any part of this
Policy or estop the Company from asserting any right under the terms of this
Policy; nor shall the terms of this Policy be waived or changed, except by
endorsement issued to form a part of this Policy.
D. SOLE Agent - The NAMED INSURED first listed in Item 1 of the
Declarations shall act on behalf of all other INSUREDS, if any, for the payment
or return of premium, receipt and acceptance of any endorsement issued to form a
part of this Policy, and giving and receiving notice of cancellation or
nonrenewal and the exercise of the rights provided in the EXTENDED REPORTING
PERIOD clause.
E. CANCELLATION - This Policy may be canceled by the INSURED by surrender
thereof to the Company or any of its authorized agents or by mailing to the
Company written notice stating when thereafter the cancellation shall be
effective.
This Policy may be canceled by the Company only for nonpayment of
premium by mailing to the NAMED INSURED at the address shown in the Policy,
written notice stating when not less than ten (10) days thereafter cancellation
shall be effective. Proof of mailing of notice described in this Condition E.
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. If the NAMED INSURED cancels, earned premium shall be computed in
accordance with the customary short rate table. If the Company cancels, earned
premium shall be computed pro rata. Premium adjustment may be either at the time
cancellation is effected or as soon as practicable after cancellation becomes
effective, but payment or tender of unearned premium is not a condition of
cancellation.
Copyright, American International Group, Inc., 2000
<PAGE>
F. TERMINATION OF COVERAGE - In the event of the INSURED's sale of a
COMMERCIAL REAL ESTATE LOAN, coverage under Coverage; A and C will automatically
terminate as of the effective date of such sale for any INSURED PROPERTY
included in such sale. Coverage B, however, will continue for such INSURED
PROPERTY for the remainder of the POLICY PERIOD and EXTENDED REPORTING PERIOD,
if applicable.
G. CONCEALMENT OR FRAUD - This entire Policy shall be void if, whether
before or after LOSS is incurred or a CLAIM is first made, the Insured has
willfully concealed or misrepresented any fact or circumstance in the Secured
Creditor Impaired Property Application material to the granting of coverage
under this Policy. In addition, coverage for any individual INSURED PROPERTY
shall be void if whether before or after LOSS is incurred or a CLAIM is first
made, the INSURED has willfully concealed or misrepresented any fact or
circumstance material to the granting of coverage for the INSURED PROPERTY under
this Policy.
H. OTHER INSURANCE
1. Coverage A.
This insurance is primary. Our obligations are not affected by
any other insurance that may be primary.
2. Coverages B and C.
(a) This insurance is primary. Our obligations are not
effected unless any other insurance applicable to LOSS
covered by this Policy is also primary. Then, we will
share with all other insurance by the method described
in paragraphs (b) and (c) below.
(b) If other primary insurance permits contribution by equal
shares, we will follow this method also. Under this
approach each insurer contributes equal amounts until It
has paid Its applicable limit of insurance or none of
the loss remains, whichever comes first.
(c) If any other insurance does not permit contribution by
equal shares, we will contribute by limits. Under this
method, each insurers share is based on the ratio of its
applicable limit of insurance to the total applicable
limits of insurance of all primary insurers.
I. RIGHT OF ACCESS AND INSPECTION - Any of the Company's authorized
representatives shall have the right and opportunity but not the obligation when
the Company so desires to interview persons employed by the INSURED and to
inspect at any reasonable time, during the POLICY PERIOD or thereafter, an
INSURED PROPERTY for which the INSURED holds title, and applicable records for
COMMERCIAL REAL ESTATE LOANS. Neither the Company nor its representatives shall
assume any responsibility or duty to the INSURED or to any other party, person
or entity, by reason of such right of inspection. Neither the Company's right to
make inspections, sample and monitor nor the actual undertaking thereof nor any
report thereon shall constitute an undertaking on behalf of the INSURED or
others, to determine or warrant that property or operations are safe, healthful
or conform to acceptable engineering practices or are in compliance with any
law, rule or regulation. The INSURED agrees to provide appropriate personnel to
assist the Company's representatives during any inspection.
J. REPRESENTATIONS - By acceptance of this Policy, the first NAMED INSURED
agrees that the statements in the Declarations and Secured Creditor Impaired
Property Application are its agreements and representations, that this Policy is
issued in reliance upon the truth of such representations and that this Policy
embodies all agreements existing between any INSURED and the Company or any of
its agents relating to this insurance.
Copyright, American International Group, Inc., 2000
<PAGE>
K. ACTION AGAINST COMPANY - No person or organization has a right
under this Policy:
1. to join the Company as a party or otherwise bring the
Company into a suit asking for damages from an INSURED; or
2. to sue the Company on this POLICY unless all of its terms
have been fully complied with.
A person or organization may sue the Company to recover on an agreed
settlement or on a final Judgment against an INSURED obtained after an actual
trial; but the Company will not be liable for damages that are not payable under
the terms of this Policy or that are in excess of the applicable limit of
liability. An agreed settlement means a settlement and release of liability
signed by the Company, the INSURED and the claimant or the claimants legal
representative.
L. BANKRUPTCY - Bankruptcy or insolvency of the INSURED or of the
INSURED's estate shall not relieve the Company of any of its obligations
hereunder.
M. ARBITRATION - It is hereby understood and agreed that all disputes or
differences which may arise under or in connection with this Policy, whether
arising before or after termination of this Policy, including any determination
of the amount of LOSS, shall be submitted to the American Arbitration
Association under and in accordance with its then prevailing commercial
arbitration rules. The arbitrators shall be chosen in the manner and within the
time frames provided by such rules. If permitted under such rules, the
arbitrators shall be three disinterested individuals having knowledge of the
legal, corporate management, or insurance issues relevant to the matters in
dispute.
Any party may commence such arbitration proceeding and the
arbitration shall be conducted in New York, New York. The arbitrators shall give
due consideration to the general principles of New York law in the construction
and interpretation of the provisions of this Policy; provided, however, that the
terms, conditions, provisions and exclusions of this Policy are to be construed
in an evenhanded fashion as between the parties. Where the language of this
Policy is alleged to be ambiguous or otherwise unclear, the issue shall be
resolved in the manner most consistent with the relevant terms, conditions,
provisions or exclusions of the Policy (without regard to the authorship of the
language, the doctrine of reasonable expectation of the parties and without any
presumption or arbitrary interpretation or construction in favor of either party
or parties, and in accordance with the intent of the parties.)
The written decision of the arbitrators shall set forth its
reasoning, shall be provided simultaneously to both parties and shall be binding
on them. The arbitrators' award shall not include attorney fees or other costs.
Judgment on the award may be entered in any court of competent jurisdiction.
Each party shall bear equally the expenses of the arbitration.
N. SERVICE OF SUIT - Subject to Paragraph M. above, it is agreed that 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.
Nothing in this condition constitutes or should be understood to constitute a
waiver of the Company's rights to commence an action in any court of competent
jurisdiction in the United States, to remove an action to a United Stated
District Court, or to seek a transfer of a case to another court as permitted by
the laws of the United States or of any state in the United States. It is
further agreed that service of process in such suit may be made upon General
Counsel, Legal Department, American International Specialty Lines Insurance
Company, 70 Pine Street, New York, New York 10270, or his or her representative,
and that in any suit instituted against the Company upon this contract, the
Company will abide by the final decision of such court or of any appellate court
in the event of any appeal.
Further, pursuant to any statute of any state, territory, or
district of the United States which makes provision therefore, the Company
hereby designates the Superintendent, Commissioner, Director of Insurance, or
other officer specified for that purpose in the statute, or his or her successor
or successors in office as its true and
Copyright, American International Group, Inc., 2000
<PAGE>
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 contract of insurance, and hereby designates the
above named General Counsel as the person to whom the said officer authorized to
mail such process or a true copy thereof.
O. SOLD LOANS - In the event a COMMERCIAL REAL ESTATE LOAN(S) is sold by
the INSURED, the Company agrees to offer coverage to the new owner of the
COMMERCIAL REAL ESTATE LOAN(S) identical to coverage provided the INSURED under
this Policy. The per INSURED PROPERTY premium to be charged to the new owner of
the COMMERCIAL REAL ESTATE LOAN(S) will be equal to the pro rata premium
applying to an INSURED PROPERTY as of the date of sale plus not more than 5100
per INSURED PROPERTY. Additional premium may be charged to the new owner of the
COMMERCIAL REAL ESTATE LOAN for negotiated differences in terms and conditions,
including but not limited to, POLICY PERIOD, limits of liability and deductible.
P. LENDER LIABILITY - The existence of any legal protection for the
INSURED against liability of any kind whatsoever in connection with POLLUTION
CONDITIONS, including but not limited to the secured creditor exemption in
Section 9601(2) of the Comprehensive Environmental Response. Compensation and
Liability Act, 42 U.S.C. Sec. 9601 et seq., shall in no way affect the rights of
the INSURED under this Policy. Any failure of the INSURED to qualify for such
protection shall not in and of itself trigger Exclusion IV.E or in any other way
affect the rights of the INSURED under this Policy.
IN WITNESS WHEREOF, has caused this Policy to be signed by its president and
secretary and signed on the Declarations page by its duly authorized
representative or countersigned in states where applicable.
/S/ /S/
------------------------------------ ---------------------------------------
SECRETARY PRESIDENT
Copyright, American International Group, Inc., 2000
<PAGE>
AMERICAN INTERNATIONAL
SPECIALTY LINES INSURANCE COMPANY
A Capital Stock Insurance Company
175 Water Street, Twelfth Floor
New York, New York 10038
[LOGO OMITTED]
A Member
Company
of American
International
Group, Inc.
NAMED INSURED: Wells Fargo Bank of Minnesota, N.A. as Trustee
for the registered holders of
Banc of America Commercial Mortgage Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2000-2
POST OFFICE: 11000 Broken Land Parkway
Columbia, MD 21044-3562
Attn: Corporate Trust Services (CMBS), Banc of America
Commercial Mortgage Inc., Series 2000-2
NOTICE: COVERAGE B PROVIDES CLAIMS-MADE-AND-REPORTED COVERAGE. PLEASE
READ CAREFULLY.
SECURED CREDITOR IMPAIRED PROPERTY POLICY
(PORTFOLIO)
DECLARATIONS
POLICY NUMBER: 341 73 31
ITEM 1: NAMED INSURED Wells Fargo Bank of Minnesota, N.A. as Trustee
for the registered holders of
Banc of America Commercial Mortgage Inc.,
Commercial Mortgage Pass-Through Certificates, Series
2000-2
ADDRESS 11000 Broken Land Parkway
Columbia, MD 21044-3562
Attn: Corporate Trust Services (CMBS), Banc of
America
Commercial Mortgage Inc., Series 2000-2
ITEM 2: POLICY PERIOD: FROM 9/22/00 TO 9/22/17
12:01 A.M. Standard time at the address of the Named
Insured shown above.
ITEM 3: LIMITS OF LIABILITY: Each LOSS $22,500,000
Total all LOSSes $59,000,000
ITEM 4: DEDUCTIBLE: Each LOSS $0
ITEM 5: INSURED PROPERTY(IES): SEE SCHEDULE OF INSURED PROPERTY ENDORSEMENTS
ITEM 6: POLICY PREMIUM: $41,650
<PAGE>
BROKER: ENVIRONMENTAL CAPITAL INSURANCE BROKERAGE, INC.
226 LOWELL STREET, UNIT B-3B
WILMINGTON, MA 01887
ENDORSEMENTS: SEE FORMS SCHEDULE
/S/
-----------------------------------------------
AUTHORIZED REPRESENTATIVE
or countersignature (in states where applicable)
Copyright, American International Group, Inc., 2000
NOTICE: THIS INSURANCE IS NOT LICENSED BY THE STATE OF NEW YORK
<PAGE>
FORMS SCHEDULE
--------------
NAMED INSURED: Wells Fargo Bank of Minnesota, N.A. as Trustee
for the registered holders of
Banc of America Commercial Mortgage Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2000-2
POLICY NO.: 341 73 31
EFFECTIVE 12:01 AM: 9/22/00
FORM NAME FORM NUMBER
--------------------------------------------------------------------------------
AISLIC Secured Creditor Impaired Property Policy 75795 (2/00)
Declarations Page 75795 (2/00)
Insured Property Endorsement
Amendatory Endorsement
Asbestos and Lead Based Paint Endorsement
<PAGE>
ENDORSEMENT NO. 1
FORMS A PART OF POLICY NUMBER: 341 73 31
ISSUED TO: Wells Fargo Bank of Minnesota, N.A. as Trustee
for the registered holders of
Banc of America Commercial Mortgage Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2000-2
BY: American International Specialty Lines Insurance Company
SCHEDULE OF INSURED PROPERTIES
------------------------------
In consideration of premium paid, it is hereby agreed that the following
property is scheduled as an INSURED PROPERTY effective 12:01 a.m. 9/22/00 and
expires 12:01 a.m. 9/22/17:
--------------------------------------------------------------------------------
Address City State Zip
--------------------------------------------------------------------------------
8620 Peace Way Las Vegas NV 89147
--------------------------------------------------------------------------------
495 Laketower Drive Lexington KY 40502
--------------------------------------------------------------------------------
717 South Highway 101 Solana Beach CA 92075
--------------------------------------------------------------------------------
300 M.A.C. Avenue East Lansing MA 48823
--------------------------------------------------------------------------------
8801-8871 Fontainebleau Boulevard Miami FL 33172
--------------------------------------------------------------------------------
19500 Western Avenue Torrance CA 90501
--------------------------------------------------------------------------------
121 7th Place East St. Paul MN 55101
--------------------------------------------------------------------------------
636 Grand Regency Blvd. Brandon FL 33510
--------------------------------------------------------------------------------
6410-6440 Southpoint Parkway Jacksonville FL 32216
--------------------------------------------------------------------------------
50 South 3rd Street Memphis TN 38103
--------------------------------------------------------------------------------
3750 South Arville Street Las Vegas NV 89103
--------------------------------------------------------------------------------
2420-2460 West 26th Ave. Denver CO 80211
--------------------------------------------------------------------------------
201 East Main Street Lexington KY 40507
--------------------------------------------------------------------------------
11 East 44th Street New York NY 10017
--------------------------------------------------------------------------------
All other terms, conditions and exclusions remain the same.
/S/
-------------------------------------------
AUTHORIZED REPRESENTATIVE
or countersignature (where required by law)
<PAGE>
ENDORSEMENT NO. 2
THIS ENDORSEMENT, EFFECTIVE 12:01 AM, 9/22/00
FORMS A PART OF POLICY NO.: 341 73 31
ISSUED TO: Wells Fargo Bank of Minnesota, N.A. as Trustee
for the registered holders of
Banc of America Commercial Mortgage Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2000-2
BY: American International Specialty Lines Insurance Company
SECURED CREDITOR IMPAIRED PROPERTY ENDORSEMENT
----------------------------------------------
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY
It is hereby agreed that the Policy is amended as follows:
1. Section II. NOTICE REQUIREMENTS AND CLAIM PROVISIONS, paragraph A. is
deleted in its entirety and replaced with the following:
A. The INSURED shall give written notice to the Company, as soon as
possible but not later than forty-five (45) days after the INSURED first
learns of the DEFAULT and POLLUTION CONDITIONS with respect to Coverage A,
a CLAIM with respect to Coverage B, or POLLUTION CONDITIONS with respect
to Coverage C to:
Manager, Pollution Insurance Products Unit
AIG Technical Services, Inc.
Environmental Claims Department
80 Pine Street, Sixth Floor
New York, New York 10005
and
Division Attorney - Pollution Legal Liability
Commerce and Industry Insurance Company
175 Water Street
New York, New York 10038
or other address(es) as substituted by the Company in writing.
2. Section III. DUTIES OF THE INSURED IN THE EVENT OF LOSS, paragraph A is
deleted in its entirety and replaced with the following:
A. The INSURED shall furnish the following to the Company as soon as
available and practicable after the INSURED first learns of the DEFAULT
and POLLUTION CONDITIONS with respect to Coverage A, a CLAIM with respect
to Coverage B, or POLLUTION CONDITIONS with respect to Coverage C:
1. all correspondence between the INSURED and any claimant;
2. all demands, summons, notices or other processes or papers
filed with a court of law, administrative agency or
investigative body;
3. all technical reports, laboratory data, field notes or any
other documents generated by persons hired by the INSURED to
investigate or remediate POLLUTION CONDITIONS;
4. all expert reports, investigations and data collected by
experts retained by the INSURED. whether or not the INSURED
intends to use the material for any purpose;
5. all other information developed or discovered by the Insured
concerning the DEFAULT and POLLUTION CONDITIONS, or LOSS.
3. Section IV. EXCLUSIONS, paragraph G is deleted in its entirety and
replaced with the following:
G. arising from POLLUTION CONDITIONS existing prior to the effective
date of coverage for an INSURED PROPERTY if as of such date the INSURED
knew that such POLLUTION CONDITIONS could give rise to a LOSS under this
Policy and failed to disclose such POLLUTION CONDITIONS to the Company, or
the Company did not otherwise learn of such POLLUTION CONDITIONS from
engineering reports, environmental spreadsheets, the Secured Creditor
Impaired Property Questionnaire, or from other technical reports the
Company obtained independently.
4. Section VI. DEFINITIONS, paragraph D, CLEAN-UP COSTS, F. DEFAULT, and R.
POLLUTION CONDITIONS are deleted in their entirety and replaced with the
following, respectively:
D. CLEAN-UP COSTS means expenses, including reasonable and necessary
legal expenses incurred with the Company's written consent which consent
shall not be unreasonably withheld or delayed, incurred in the
investigation (including remedial studies and design), removal,
remediation (including the associated monitoring), or disposal of soil,
surfacewater, groundwater or other contamination:
(1) to the extent required by ENVIRONMENTAL LAWS, or by court
order or directive, the government or any political
subdivision of the United States of America or any state
thereof, or Canada; or
(2) which have been actually incurred by the government or any
political subdivision of the United States of America or any
state thereof, or Canada or any province thereof, or by
third-parties.
F. DEFAULT means the failure of a BORROWER to make any part of a
scheduled, periodic or final payment by the due date under the COMMERCIAL
REAL ESTATE LOAN or the BORROWER'S failure to comply with items designated
as the causes or events of default as provided by the terms of the
COMMERCIAL REAL ESTATE LOAN. The DEFAULT shall be deemed to occur on the
day after such due date under the COMMERCIAL REAL ESTATE LOAN provided
that the DEFAULT was not cured within the applicable grace period as
provided by the terms of the COMMERCIAL REAL ESTATE LOAN.
R. POLLUTION CONDITIONS means:
(1) With respect to Coverages A and C, the discharge,
dispersal, release or escape of any solid, liquid, gaseous or
thermal irritant or contaminant, including smoke, vapors, soot,
fumes, acids, alkalis, toxic chemicals, hazardous substances, and
waste materials into or upon land, or any structure on land, the
atmosphere or any watercourse or body of water, including
groundwater, resulting in concentrations or amounts exceeding
maximum levels allowed by applicable ENVIRONMENTAL LAWS, or by
governmental or court order or directive, acting under the authority
granted by ENVIRONMENTAL LAWS, provided such conditions are not
naturally present in the environment in the concentration or amounts
discovered.
(2) with respect to Coverage B, the discharge, dispersal,
release, or escape of any solid, liquid, gaseous or thermal irritant
or contaminant, including smoke, vapors, soot, fumes, acids,
alkalis, toxic chemicals, and waste materials into or upon land, or
any structure on land, the atmosphere or any watercourse or body of
water, including groundwater, provided such conditions are not
naturally present in the environment in the concentration or amounts
discovered.
5. Section VIII. CONDITIONS, paragraph A. ASSIGNMENT is deleted in its
entirety and replaced with the following:
A. ASSIGNMENT - This Policy may not be assigned without the prior
written consent of the Company which consent shall not be unreasonably
withheld. Assignment of interest under this Policy shall not bind the
Company until its consent is endorsed thereon. However, this Policy may be
assigned by the NAMED INSURED, without the Company's prior written consent
to a SERVICER or TRUSTEE, or another entity which has, directly or
indirectly, invested in or loaned money in connection with an INSURED
PROPERTY. The NAMED INSURED must provide the Company written notice of
such assignment within forty-five (45) days of the effective date of the
assignment.
All other terms, conditions and exclusions shall remain the same.
/S/
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AUTHORIZED REPRESENTATIVE
or countersignature (in states where applicable)
<PAGE>
ENDORSEMENT NO. 3
THIS ENDORSEMENT EFFECTIVE 12:01 A.M.: 9/22/00
FORMS A PART OF POLICY #: 341 73 31
ISSUED TO: Wells Fargo Bank of Minnesota, N.A. as Trustee
for the registered holders of
Banc of America Commercial Mortgage Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2000-2
BY: American International Specialty Lines Insurance Company
AMENDATORY ENDORSEMENT
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THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.
It is hereby agreed that Paragraphs J & K of SECTION IV. EXCLUSIONS are deleted
in their entirety and replaced with the following:
J. arising from the presence of asbestos or asbestos-containing materials
installed in or on any building or other structure. With the exception of
residential properties, this exclusion shall not apply to CLAIMS for
BODILY INJURY or government mandated CLEAN-UP COSTS on any INSURED
PROPERTY.
K. arising from the presence of lead-based paint applied to any real or
personal property on or under an INSURED PROPERTY. With the exception of
residential properties, this exclusion shall not apply to CLAIMS for
BODILY INJURY or government mandated CLEAN-UP COSTS on any INSURED
PROPERTY.
/S/
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AUTHORIZED REPRESENTATIVE
or countersignature (where required by law)
<PAGE>
AMERICAN INTERNATIONAL SPECIALTY LINES INSURANCE COMPANY
SECURED CREDITOR IMPAIRED PROPERTY POLICY
THIS POLICY HAS CERTAIN PROVISIONS AND REQUIREMENTS UNIQUE TO IT AND MAY BE
DIFFERENT FROM OTHER POLICIES THE INSURED MAY HAVE PURCHASED. PLEASE READ THE
ENTIRE POLICY CAREFULLY TO DETERMINE THE INSURED'S RIGHTS AND DUTIES, AND WHAT
IS AND IS NOT COVERED. VARIOUS PROVISIONS THROUGHOUT THIS POLICY RESTRICT OR
EXCLUDE COVERAGE.
COVERAGE IS AFFORDED ONLY FOR THOSE INSURED PROPERTIES SCHEDULED ON THE
POLICY.
DEFINED TERMS APPEAR IN BOLD FACE TYPE.
In consideration of the payment of the premium, in reliance upon the statements
in the Declarations and Secured Creditor Impaired Property Application
incorporated by reference and made a part hereof, and pursuant to all of the
terms of this Policy, the Company agrees with the INSURED as follows:
I. INSURING AGREEMENT
A. COVERAGE A - DEFAULT AND POLLUTION CONDITIONS
The Company will indemnify the INSURED for LOSS, if during the
POLICY PERIOD and prior to FORECLOSURE, there is a DEFAULT by a BORROWER on a
COMMERCIAL REAL ESTATE LOAN secured by an INSURED PROPERTY, LEASEHOLD or FIXED
ASSETS, and there are POLLUTION CONDITIONS on, under or emanating from the same
INSURED PROPERTY prior to or while the COMMERCIAL REAL ESTATE LOAN is in
DEFAULT.
B. COVERAGE B - THIRD-PARTY CLAIMS
The Company agrees to pay LOSS on behalf of the INSURED that the
INSURED becomes legally obligated to pay as a result of CLAIMS first made
against the INSURED and reported to the Company, in writing, during the POLICY
PERIOD, for BODILY INJURY, PROPERTY DAMAGE or CLEAN-UP COSTS resulting from
POLLUTION CONDITIONS on, under or emanating from an INSURED PROPERTY.
C. COVERAGE C - CLEAN-UP OF POLLUTION CONDITIONS
The Company agrees to pay LOSS on behalf of the INSURED, after
FORECLOSURE, if CLEAN-UP COSTS are sustained because there are POLLUTION
CONDITIONS on, under or emanating from the INSURED PROPERTY during the POLICY
PERIOD provided that where required, such POLLUTION CONDITIONS have been
reported by the INSURED to the appropriate governmental agency in compliance
with applicable ENVIRONMENTAL LAWS, in effect as of the date of discovery.
D. LEGAL EXPENSE AND DEFENSE - COVERAGE B
The Company shall have the right and duty to investigate and defend
any CLAIM described in Coverage B. The Company's duty to defend or continue
defending any such CLAIM, and to pay any LOSS, shall cease once the applicable
limit of coverage, as described in Section V. LIMITS OF COVERAGE; DEDUCTIBLE has
been exhausted. Investigation and defense costs, charges and expenses are
included in LOSS, reduce the applicable limit of liability, and are included
within the Deductible amount shown in Item 4 of the Declarations.
E. INDEPENDENT COUNSEL - COVERAGE B
If the INSURED is entitled by law to select independent counsel to
defend the INSURED at the Company's expense, the attorney fees and all other
litigation expenses the Company must pay to that counsel are limited to the
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
competency, inducing experience in defending CLAIMS or suits similar to the one
pending against the INSURED and to require such counsel to have errors and
omissions insurance coverage. As respects to such counsel, the INSURED agrees
that counsel will timely respond to the Company's request for information
regarding the CLAIM.
Furthermore, the INSURED may at any time, by its signed consent,
freely and fully waive its rights to select independent counsel
II. NOTICE REQUIREMENTS AND CLAIM PROVISIONS
It is a condition precedent to any rights afforded under this Policy that
the INSURED provide the Company with notice of DEFAULT and POLLUTION CONDITIONS,
or LOSS as follows:
A. The INSURED shall give written notice to the Company, as soon as
possible but not later than forty-five (45) days after the INSURED first learns
of the DEFAULT and POLLUTION CONDITIONS, or LOSS to:
Manager, Pollution Insurance Products Unit
AIG Technical Services, Inc
Environmental Claims Department
80 Pine Street, Sixth Floor
New York, New York 10005
and
Division Attorney - Pollution Legal Liability
American International Specialty Lines Insurance Company
175 Water Street, Twelfth Floor
New York, New York 10038
or other address(es) as substituted by the Company in writing.
B. The notice shall include, at a minimum, information sufficient to
identify the INSURED, the INSURED PROPERTY, the names of the persons with
knowledge regarding the time, place, cause, nature of and other circumstances of
the DEFAULT and POLLUTION CONDITIONS, or LOSS.
C. The notice may be provided only by the INSURED and may not be delegated
to third parties. It is not a defense to this condition precedent that the
Company learned of the DEFAULT and POLLUTION CONDITIONS, or LOSS through any
independent means.
III. DUTIES OF THE INSURED IN THE EVENT OF LOSS
A. The INSURED shall furnish the following to the Company as soon as
available and practicable after the INSURED first learns of the DEFAULT and
POLLUTION CONDITIONS, or LOSS:
1. all correspondence between the INSURED and any claimant;
2. all demands, summons, notices or other processes or papers
filed with a court of law, administrative agency or
investigative body;
3. all technical reports, laboratory data, field notes or any
other documents generated by persons hired by the INSURED to
investigate or remediate POLLUTION CONDITIONS;
4. all expert reports, investigations and data collected by
experts retained by the INSURED, whether or not the INSURED
intends to use the material for any purpose;
5. all other information developed or discovered by the Insured
concerning the DEFAULT and POLLUTION CONDITIONS, or LOSS.
B. NO INSURED shall voluntarily enter into any settlement, make any
payment, assume any obligation, or incur any costs, charges or expenses in the
defense or investigation of a CLAIM without the Company's consent which shall
not be unreasonably withheld or delayed, except at the INSURED'S own cost, or in
response to an emergency or pursuant to ENVIRONMENTAL LAWS which require
immediate remediation of POLLUTION CONDITIONS.
C. If the INSURED refuses to consent to any settlement within the limits
of coverage of this Policy recommended by the Company and acceptable to the
claimant, the Company's duty to defend the INSURED shall then cease and the
INSURED shall thereafter negotiate or defend such CLAIM independently of the
Company and the Company's liability shall not exceed the amount, less the
Deductible or any outstanding Deductible balance, for which the CLAIM could have
been settled if such recommendation was consented to.
D. The INSURED must cooperate with the Company and offer all reasonable
assistance in the investigation and defense of CLAIMs. The Company may require
that the INSURED submit to examination under oath, and attend hearings,
depositions and trials. In the course of investigation or defense, the Company
may require written statements or the INSURED's attendance at meetings with the
Company. The INSURED must reasonably assist the Company in effecting settlement,
securing and providing evidence and obtaining the attendance of witnesses, all
without charge to the Company.
IV. EXCLUSIONS
This Policy does not apply to LOSS:
A. due to or for any punitive, exemplary or multiplied portion of multiple
damages or any civil or administrative fines, penalties or assessments, except
where such damages, fines, penalties or assessments are insurable by applicable
law; or any criminal fines, penalties or assessments.
B. arising as a result of liability of others assumed by the INSURED under
any contract or agreement, unless the liability of the INSURED would have
attached in the absence of such contract or agreement.
C. arising out of any obligation of the INSURED under any worker's
compensation, unemployment compensation or disability benefits law or similar
law.
D. arising from BODILY INJURY to an employee of the INSURED or its parent,
subsidiary or affiliate arising out of and in the course of employment by the
INSURED or its parent, subsidiary or affiliate. This exclusion applies (1)
whether the INSURED may be liable as an employer or in any other capacity; and
(2) to any obligation to share damages with or repay third parties that must pay
damages because of this injury.
E. arising from POLLUTION CONDITIONS resulting from or attributable to the
INSURED'S intentional, knowing, willful or deliberate noncompliance with any
statute, regulation, ordinance, administrative complaint, notice of violation,
notice letter, executive order, or instruction of any governmental agency or
body.
F. arising from POLLUTION Conditions resulting from an intentionally
illegal act or omission of the INSURED, if the INSURED knew that the POLLUTION
CONDITIONS would result.
G. arising from POLLUTION CONDITIONS existing prior to the effective date
of coverage for an INSURED PROPERTY, and not otherwise specifically excluded by
endorsement to this Policy, if as of such date the INSURED knew that such
POLLUTION CONDITIONS could give rise to a LOSS under this Policy and failed to
disclose such POLLUTION CONDITIONS to the Company, or the Company did not
otherwise learn of such POLLUTION CONDITIONS from engineering reports,
environmental spreadsheets, the Secured Creditor Impaired Property
Questionnaire, or from other technical reports the Company obtained
independently.
H. by one INSURED against any other person or entity who is also an
INSURED under this Policy.
I. for costs, charges or expenses incurred by the INSURED for goods
supplied or services performed by the staff or salaried employees of the
INSURED, or its parent, subsidiary or affiliate, unless such costs, charges or
expenses are incurred with the prior written approval of the Company in its sole
discretion.
J. ARIsing from the presence of asbestos or any asbestos-containing
materials installed in or on any building or other structure.
K. arising from the presence of lead-based paint applied to any real or
personal property on or under an INSURED PROPERTY.
V. LIMITS OF COVERAGE: DEDUCTIBLE
Regardless of the number of POLLUTION CONDITIONS, INSUREDS, CLAIMS, LOSSES
or claimants under this Policy, the following limits of coverage apply:
A. POLICY AGGREGATE LIMIT
The Company's total liability for all LOSS covered under this Policy shall
not exceed the "Total all LOSSes" stated in Item 3 of the Declarations. The
purchase of an Extended Reporting Period pursuant to Section VII. of this Policy
shall not serve to reinstate or increase the "Total all LOSSes".
B. EACH LOSS LIMIT
Subject to and included in the limit of liability described in Paragraph
A. above, the most the Company will pay in excess of the deductible amount shown
in Item 4 of the Declarations for each LOSS under Coverage A and B, and for all
CLEAN-UP COSTS arising from the same, continuous or related POLLUTION CONDITIONS
under Coverage C, is the "Each LOSS" limit of liability shown in Item 3 of the
Declarations.
C. RELATED POLLUTION CONDITIONS
1. Solely with respect to Coverage B, if a CLAIM for BODILY INJURY,
PROPERTY DAMAGE or CLEAN-UP COSTS is first made against the INSURED and reported
to the Company during this POLICY PERIOD, all CLAIMs for BODILY INJURY, PROPERTY
DAMAGE or CLEAN-UP COSTS arising from the same, continuous or related POLLUTION
CONDITIONS, which are made against the INSURED and reported under a subsequent
Secured Creditor Impaired Property Policy issued by the Company or its
affiliate, shall be deemed to have been first made and reported under this
Policy and shall be subject to the Limits of Liability under this Policy.
Coverage under this Policy for such CLAIMS made against the INSURED and
reported under a subsequent Secured Creditor Impaired Property Policy as
described in Paragraph 1. above, shall not apply unless at the time such CLAIMS
are first made and reported the INSURED has maintained with the Company or its
affiliate Secured Creditor Impaired Property coverage substantially the same as
this coverage on a successive, uninterrupted basis since the first such CLAIM
was made against the INSURED and reported to the Company.
2. All LOSS arising from the same, continuous, or related POLLUTION
CONDITIONS shall be subject to one "Each LOSS" limit of liability. In the event
coverage is provided under more than one of Coverages A, B and C, only one "Each
LOSS" limit stated in Item 3 of the Declarations shall apply.
D. DEDUCTIBLE
Subject to Section V. LIMITS OF COVERAGE; DEDUCTIBLE, Paragraphs A., and
B. above, this Policy is to pay all LOSS in excess of the "Each LOSS" Deductible
amount stated in Item 4 of the Declarations. The Deductible amount includes
investigation and defense costs, charges and expenses, and applies to all LOSS
arising from the same, related or continuous POLLUTION CONDITIONS.
The INSURED shall promptly reimburse the Company for advancing any payment
of LOSS falling within the Deductible.
VI. DEFINITIONS
A. BODILY INJURY means physical injury, sickness, disease, mental anguish
or emotional distress sustained by any person, including death resulting
therefrom.
B. BORROWER means any obligor on a COMMERCIAL REAL ESTATE LOAN, including
without limitation, any guarantor therefor, the holder of any ownership interest
in an INSURED PROPERTY and any other person, entity or organization controlled
by or under common control of the obligor.
C. CLAIM means a written demand received by the INSURED seeking a remedy
and alleging liability or responsibility on the part of the INSURED for LOSS
under Coverage B.
D. CLEAN-UP COSTS means expenses, including reasonable and necessary legal
expenses, incurred with the Company's written consent, incurred in the
investigation (including remedial studies and design), removal, remediation
(including the associated monitoring), or disposal of soil, surfacewater,
groundwater or other contamination:
(1) to the extent required by ENVIRONMENTAL LAWS, or specifically
mandated by court order, the government or any political
subdivision of the United States of America or any state
thereof, or Canada; or
(2) which have been actually incurred by the government or any
political subdivision of the United States of America or any
state thereof, or Canada or any province thereof, or by
third-parties.
E. COMMERCIAL REAL ESTATE LOAN means an obligation evidenced by loan
documents which is secured by the INSURED PROPERTY, LEASEHOLD or FIXED ASSETS as
scheduled in Item 5 of the Declarations, and in which loan documents the INSURED
relies upon such INSURED PROPERTY, LEASEHOLD or FIXED ASSETS as security for the
loan and obtains a perfected mortgage or other security interest.
F. DEFAULT means the failure of a BORROWER to make any part of a
scheduled, periodic or final payment by the due date under the COMMERCIAL REAL
ESTATE LOAN or the BORROWER'S failure to comply with items designated as the
causes or events of DEFAULT as provided by the terms of the COMMERCIAL REAL
ESTATE LOAN. The DEFAULT shall be deemed to occur on the day after such due date
under the COMMERCIAL REAL ESTATE LOAN provided that the DEFAULT was not cured
within the applicable grace period as provided by the terms of the COMMERCIAL
REAL ESTATE LOAN. For purposes of this Policy, the mere presence of a POLLUTION
CONDITION shall not be deemed a cause or event of default.
G. ENVIRONMENTAL LAWS means any federal, state or local laws (including
but not limited to statutes, regulations, rules, ordinances, guidance documents,
and governmental or administrative orders and directives) which are applicable
to POLLUTION CONDITIONS.
H. FIXED ASSETS means fixtures, plant and equipment at or on an INSURED
PROPERTY owned by the BORROWER, which are depreciated over their useful life.
I. FORECLOSURE means taking title to an interest in the INSURED PROPERTY,
LEASEHOLD or FIXED ASSETS through the enforcement of a lien, mortgage, deed of
trust or other secured interest under a COMMERCIAL REAL ESTATE LOAN, whether
through legal proceedings or otherwise.
J. INSURED means the NAMED INSURED, TRUSTEE or SERVICER, and any DIRECTOR,
officer, partner or employee thereof while acting within the scope of his or her
duties as such, and any such additional INSURED added by endorsement to this
Policy.
K. INSURED PROPERTY means the real property, including any FIXED ASSETS or
LEASEHOLD, scheduled in Item 5. of the Declarations on the date of the LOSS.
L. LEASEHOLD means the BORROWER'S right to possession of leased INSURED
PROPERTY pursuant to a written lease agreement.
M. LOSS means:
1. With respect to Coverage A, the OUTSTANDING BALANCE on the
date of DEFAULT, including principal and accrued interest from
the date of DEFAULT until the date that the OUTSTANDING
BALANCE is paid, plus interest on any advances of scheduled
monthly payments made by the INSURED from the date of DEFAULT,
plus advances and interest on advances for PROPERTY PROTECTION
actually paid by the INSURED pursuant to the COMMERCIAL REAL
ESTATE LOAN or, if applicable, a POOLING AND SERVICING
AGREEMENT. Such advances and interest on advances made for
PROPERTY PROTECTION are limited to ten (10) percent of the
OUTSTANDING BALANCE on the date of DEFAULT.
2. With respect to Coverage B, (a) monetary awards or settlements
of compensatory damages for BODILY INJURY, PROPERTY DAMAGE or
CLEAN-UP COSTS; (b) CLEAN-UP COSTS; and (c) costs, charges and
expenses incurred in the defense, investigation and adjustment
of CLAIMS.
3. With respect to Coverage C, CLEAN-UP COSTS.
N. NAMED INSURED means the party, person or entity named in Item 1 of the
Declarations.
O. NATURAL RESOURCE DAMAGE means physical injury to or destruction of,
including the resulting LOSS of value of, land, fish, wildlife, biota, air,
water, groundwater, drinking water supplies, and other such resources belonging
to, managed by, held in trust by, appertaining to, or otherwise controlled by
the United States (including the resources of the fishery conservation zone
established by the Magnuson-Stevens Fishery Conservation and Management Act (16
U.S.C. 1801 et seq.)), any state or local government, any foreign government,
any Indian tribe, or, if such resources are subject to a trust restriction on
alienation, any member of an Indian tribe.
P. OUTSTANDING BALANCE means the principal amount of outstanding
indebtedness owed to the INSURED as of the date of DEFAULT calculated pursuant
to the terms and conditions of the COMMERCIAL REAL ESTATE LOAN plus interest as
described in the definition of LOSS. OUTSTANDING BALANCE shall not include
penalties or other fees arising out of a DEFAULT.
Q. POLICY PERIOD means the period set forth in Item 2 of the Declarations
or any shorter period arising as a result of:
1. cancellation of this Policy; or
2. the deletion by the Company of a particular INSURED Property
at the NAMED INSURED's written request, but solely with
respect to that INSURED PROPERTY.
R. POLLUTION CONDITIONS means:
1. with respect to Coverages A and C, the discharge, dispersal,
release or escape of any solid, liquid, gaseous or thermal irritant or
contaminant, including smoke, vapors, soot, fumes, acids, alkalis, toxic
chemicals, and waste materials into or upon land, or any structure on land, the
atmosphere or any watercourse or body of water, including groundwater, in
concentrations or amounts exceeding maximum levels allowed by applicable
ENVIRONMENTAL LAWS, or by governmental or court order or directive, acting under
the authority granted by ENVIRONMENTAL LAWS, provided such conditions are not
naturally present in the environment in the concentration or amounts discovered.
2. with respect to Coverage B, the discharge, dispersal, release, or
escape of any solid, liquid, gaseous or thermal irritant or contaminant,
including smoke, vapors, soot, fumes, acids, alkalis, toxic chemicals, and waste
materials into or upon land, or any structure on land, the atmosphere or any
watercourse or body of water, including groundwater, provided such conditions
are not naturally present in the environment in the concentration or amounts
discovered.
S. POOLING AND SERVICING AGREEMENT means the agreement governing the
servicing of the COMMERCIAL REAL ESTATE LOAN(S).
T. PROPERTY DAMAGE means:
1. Physical injury to or destruction of tangible property of
parties other than the INSURED, including the resulting loss
of use or diminution in value thereof;
2. LOSS of use, but not diminution in value, of tangible property
of parties other than the INSURED, which has not been
physically injured or destroyed;
3. NATURAL RESOURCE DAMAGE.
U. PROPERTY PROTECTION means reasonable expenses necessary to protect the
INSURED PROPERTY.
V. SERVICER means the party(ies) to the POOLING AND SERVICING AGREEMENT
responsible for servicing the COMMERCIAL REAL ESTATE LOAN(S).
W. TRUSTEE means the trustee under the POOLING AND SERVICING AGREEMENT.
VII. EXTENDED REPORTING PERIOD - COVERAGE B
Solely with respect to Coverage B, the INSURED shall be entitled to an
Automatic Extended Reporting Period, and (with certain exceptions as described
in paragraph B. of this Section) entitled to purchase an Optional Extended
Reporting Period Endorsement upon termination of coverage as defined in
Paragraph B.3. of this Section. Neither the Automatic nor the Optional Extended
Reporting Period shall reinstate or increase the Policy Aggregate Limit of this
Policy.
A. AUTOMATIC EXTENDED REPORTING PERIOD
Provided the INSURED has not purchased any other insurance to
replace Coverage B which applies to a CLAIM otherwise covered under Coverage B,
the NAMED INSURED shall have a period of forty-live (45) days following the
effective date of termination of coverage in which to provide written notice to
the Company of CLAIMs first made and reported within the Automatic Extended
Reporting Period. A CLAIM first made and reported within the Automatic Extended
Reporting Period will be deemed made on the last day of the POLICY PERIOD,
provided the CLAIM arises from POLLUTION CONDITIONS that commenced before the
end of the POLICY PERIOD and is otherwise covered by this Policy. The Automatic
Extended Reporting Period shall not apply if the Optional Extended Reporting
Period becomes effective.
B. OPTIONAL EXTENDED REPORTING PERIOD
The NAMED INSURED shall be entitled to purchase an Optional Extended
Reporting Period upon termination of coverage, as defined in Paragraph 3. below,
except in the event of nonpayment of premium.
1. A CLAIM first made and reported within the Optional Extended
Reporting Period, if purchased in accordance with the provisions contained in
Paragraph 2 below, will be deemed to have been made on the last day of the
POLICY PERIOD, provided that the CLAIM arises from POLLUTION CONDITIONS that
commenced before the end of the POLICY PERIOD and is otherwise covered by this
Policy.
2. The Company shall issue an endorsement providing an Optional
Extended Reporting Period of up to thirty-six (36) months from termination of
coverage under this Policy for any INSURED PROPERTY provided that the NAMED
INSURED:
a. makes a written request for such endorsement which the
Company receives within forty-five (45) days after
termination of coverage as defined herein; and
b. pays the additional premium when due. If that additional
premium is paid when due, the Optional Extended
Reporting Period may not be canceled, provided that all
other terms and conditions of the Policy are met.
3. Termination of coverage occurs at the time of:
a. cancellation or nonrenewal of this Policy by the
NAMED INSURED or by the Company;
b. the Company's deletion from Item 5 of the Declarations
of this Policy of a location which was an INSURED
PROPERTY, at the INSURED's written request, but solely
with respect to that INSURED PROPERTY.
4. The Optional Extended Reporting Period is available to the NAMED
INSURED for not more than 200% of the premium the Company has charged for the
INSURED PROPERTY for which the Extended Reporting Period is purchased.
VIII. CONDITIONS
A. ASSIGNMENT - This Policy may not be assigned without the prior written
consent of the Company which consent shall not be unreasonably withheld.
Assignment of interest under this Policy shall not bind the Company until its
consent is endorsed thereon. However, this Policy may be assigned by the NAMED
INSURED, without the Company's prior written consent to the SERVICER or TRUSTEE,
or another entity which has, directly or indirectly, invested in or loaned money
in connection with an INSURED PROPERTY. The NAMED INSURED must provide the
Company written notice of such assignment within forty-five (45) days of the
effective date of the assignment.
B. SUBROGATION
1. To the extent of any payment under this Policy, the Company shall
be subrogated to all the INSURED'S rights of recovery therefor against any
person or organization, with the exception of the BORROWER; provided that if the
Company indemnifies the INSURED for the OUTSTANDING BALANCE under Coverage A,
the Company reserves its right of FORECLOSURE against the Borrower.
2. The INSURED shall execute and deliver instruments and papers and
do whatever else is reasonably necessary to secure such rights including without
limitation, assignment of the INSURED's rights against any person or
organization, with the exception of the BORROWER, who caused POLLUTION
CONDITIONS on account of which the Company made any payment under this Policy.
3. Any recovery as a result of subrogation proceedings shall accrue
first to the INSURED to the extent of any LOSS in excess of the limit of
coverage, then to the Company to the extent of its payment under the policy, and
then to the INSURED to the extent of its Deductible. Expenses incurred in such
subrogation proceedings shall be apportioned among the interested parties in the
recovery in the proportion that each interested party's share in the recovery
bears to the total recovery. Any recoveries received by the Company via
subrogation net of expenses incurred in making such recovery shall serve to
reinstate the "Total all LOSSes" limit of liability stated in Item 3 of the
Declarations, but only to the extent of such net recovery.
4. The INSURED shall do nothing to prejudice the Company's
rights of Subrogation.
C. CHANGES - Notice to any agent or knowledge possessed by any agent or by
any other person shall not effect a waiver or a change in any part of this
Policy or estop the Company from asserting any right under the terms of this
Policy; nor shall the terms of this Policy be waived or changed, except by
endorsement issued to form a part of this Policy.
D. SOLE AGENT -- The NAMED INSURED first listed in Item 1 of the
Declarations shall act on behalf of all other INSUREDS, if any, for the payment
or return of premium, receipt and acceptance of any endorsement issued to form a
part of this Policy, and giving and receiving notice of cancellation or
nonrenewal and the exercise of the rights provided in the EXTENDED REPORTING
PERIOD clause.
E. CANCELLATION - This Policy may be canceled by the INSURED by surrender
thereof to the Company or any of its authorized agents or by mailing to the
Company written notice stating when thereafter the cancellation shall be
effective.
This Policy may be canceled by the Company only for nonpayment of premium
by mailing to the NAMED INSURED at the address shown in the Policy, written
notice stating when not less than ten (10) days thereafter cancellation shall be
effective. Proof of mailing of notice described in this Condition E. 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. If the NAMED INSURED cancels, earned premium shall be computed in
accordance with the customary short rate table. If the Company cancels, earned
premium shall be computed pro rata. Premium adjustment may be either at the time
cancellation is effected or as soon as practicable after cancellation becomes
effective, but payment or tender of unearned premium is not a condition of
cancellation.
F. TERMINATION OF COVERAGE - In the event of the INSURED'S sale of a
COMMERCIAL REAL ESTATE LOAN coverage under Coverages A and C will automatically
terminate as of the effective date of such sale for any INSURED PROPERTY
included in such sale. Coverage B, however, will continue for such INSURED
PROPERTY for the remainder of the POLICY PERIOD and EXTENDED REPORTING PERIOD,
if applicable.
G. CONCEALMENT OR FRAUD - This entire Policy shall be void if, whether
before or after LOSS is incurred or a CLAIM is first made, the Insured has
willfully concealed or misrepresented any fact or circumstance in the Secured
Creditor Impaired Property Application material to the granting of coverage
under this Policy. In addition, coverage for any individual INSURED PROPERTY
shall be void if, whether before or after LOSS is incurred or a CLAIM is first
made, the INSURED has willfully concealed or misrepresented any fact or
circumstance material to the granting of coverage for the INSURED PROPERTY under
this Policy.
H. OTHER INSURANCE
1. Coverage A.
This insurance is primary. Our obligations are not affected by
any other insurance that may be primary.
2. Coverages B and C.
(a) This insurance is primary. Our obligations are not
affected unless any other insurance applicable to LOSS
covered by this Policy is also primary. Then, we will
share with all other insurance by the method described
in paragraphs (b) and (c) below.
(b) If other primary insurance permits contribution by equal
shares, we will follow this method also. Under this
approach each insurer contributes equal amounts until it
has paid its applicable limit of insurance or none of
the loss remains, whichever comes first.
(c) If any other insurance does not permit contribution by
equal shares, we will contribute by limits. Under this
method, each insurer's share is based on the ratio of
its applicable limit of insurance to the total
applicable limits of insurance of all primary insurers.
I. RIGHT OF ACCESS AND INSPECTION - Any of the Company's authorized
representatives shall have the right and opportunity but not the obligation when
the Company so desires to interview persons employed by the INSURED and to
inspect at any reasonable time, during the POLICY PERIOD or thereafter, an
INSURED PROPERTY for which the INSURED holds title, and applicable records for
Commercial Real estate Loans. Neither the Company nor its representatives shall
assume any responsibility or duty to the INSURED or to any other party, person
or entity, by reason of such right of inspection. Neither the Company's right to
make inspections, sample and monitor nor the actual undertaking thereof nor any
report thereon shall constitute an undertaking on behalf of the INSURED or
others, to determine or warrant that property or operations are safe, healthful
or conform to acceptable engineering practices or are in compliance with any
law, rule or regulation. The INSURED agrees to provide appropriate personnel to
assist the Company's representatives during any inspection.
J. REPRESENTATIONS - By acceptance of this Policy, the first NAMED INSURED
agrees that the statements in the Declarations and Secured Creditor Impaired
Property Application are its agreements and representations, that this Policy is
issued in reliance upon the truth of such representations and that this Policy
embodies all agreements existing between any INSURED and the Company or any of
its agents relating to this insurance.
K. ACTION AGAINST COMPANY - No person or organization has a right under
this Policy:
1. to join the Company as a party or otherwise bring the
Company into a suit asking for damages from an INSURED; or
2. to sue the Company on this Policy unless all of its terms
have been fully complied with.
A person or organization may sue the Company to recover on an agreed
settlement or on a final judgment against an INSURED obtained after an actual
trial; but the Company will not be liable for damages that are not payable under
the terms of this Policy or that are in excess of the applicable limit of
liability. An agreed settlement means a settlement and release of liability
signed by the Company, the INSURED and the claimant or the claimant's legal
representative.
L. BANKRUPTCY - Bankruptcy or insolvency of the INSURED or of the
INSURED'S estate shall not relieve the Company of any of its obligations
hereunder.
M. ARBITRATION - It is hereby understood and agreed that all disputes or
differences which may arise under or in connection with this Policy, whether
arising before or after termination of this Policy, including any determination
of the amount of LOSS, shall be submitted to the American Arbitration
Association under and in accordance with its then prevailing commercial
arbitration rules. The arbitrators shall be chosen in the manner and within the
time frames provided by such rules. If permitted under such rules, the
arbitrators shall be three disinterested individuals having knowledge of the
legal, corporate management, or insurance issues relevant to the matters in
dispute.
Any party may commence such arbitration proceeding and the arbitration
shall be conducted in New York, New York. The arbitrators shall give due
consideration to the general principles of New York law in the construction and
interpretation of the provisions of this Policy; provided, however, that the
terms, conditions, provisions and exclusions of this Policy are to be construed
in an evenhanded fashion as between the parties. Where the language of this
Policy is alleged to be ambiguous or otherwise unclear, the issue shall be
resolved in the manner most consistent with the relevant terms, conditions,
provisions or exclusions of the Policy (without regard to the authorship of the
language, the doctrine of reasonable expectation of the parties and without any
presumption or arbitrary interpretation or construction in favor of either party
or parties, and in accordance with the intent of the parties.)
The written decision of the arbitrators shall set forth its reasoning,
shall be provided simultaneously to both parties and shall be binding on them.
The arbitrators' award shall not include attorney fees or other costs. Judgment
on the award may be entered in any court of competent jurisdiction. Each party
shall bear equally the expenses of the arbitration.
N. SERVICE OF SUIT - Subject to Paragraph M. above, it is agreed that 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.
Nothing in this condition constitutes or should be understood to constitute a
waiver of the Company's rights to commence an action in any court of competent
jurisdiction in the United States, to remove an action to a United Stated
District Court, or to seek a transfer of a case to another court as permitted by
the laws of the United States or of any state in the United States. It is
further agreed that service of process in such suit may be made upon General
Counsel, Legal Department, American International Specialty Lines Insurance
Company, 70 Pine Street, New York, New York 10270, or his or her representative,
and that in any suit instituted against the Company upon this contract, the
Company will abide by the final decision of such court or of any appellate court
in the event of any appeal.
Further, pursuant to any statute of any state, territory, or district of
the United States which makes provision therefore, the Company hereby designates
the Superintendent, Commissioner, Director of Insurance, or other officer
specified for that purpose in the statute, or his or her successor or successors
in office 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 contract of insurance,
and hereby designates the above named General Counsel as the person to whom the
said officer authorized to mail such process or a true copy thereof.
O. SOLD LOANS -- In the event a COMMERCIAL REAL ESTATE LOAN(S) is sold by
the INSURED, the Company agrees to offer coverage to the new owner of the
COMMERCIAL REAL ESTATE LOAN(S) identical to coverage provided the INSURED under
this Policy. The per INSURED PROPERTY premium to be charged to the new owner of
the COMMERCIAL REAL ESTATE LOAN(S) will be equal to the pro rata premium
applying to an INSURED PROPERTY as of the date of sale plus not more than $100
per INSURED PROPERTY. Additional premium may be charged to the new owner of the
COMMERCIAL REAL ESTATE LOAN for negotiated differences in terms and conditions,
including but not limited to, POLICY PERIOD, limits of liability and deductible.
P. LENDER LIABILITY -- The existence of any legal protection for the
INSURED against liability of any kind whatsoever in connection with POLLUTION
CONDITIONS, including but not limited to the secured creditor exemption in
Section 9601(2) of the Comprehensive Environmental Response, Compensation and
Liability Act, 42 U.S.C. Sec. 9801 et seq., shall in no way affect the rights of
the INSURED under this Policy. Any failure of the INSURED to qualify for such
protection shall not in and of itself trigger Exclusion IV.E or in any other way
affect the rights of the INSURED under this Policy.
<PAGE>
IN WITNESS WHEREOF, the Company has caused this Policy to be signed by its
president and secretary and signed on the Declarations page by its duly
authorized representative or countersigned in states where applicable.
/S/ /S/
------------------------------------ ---------------------------------------
SECRETARY PRESIDENT
<PAGE>
AMERICAN INTERNATIONAL
SPECIALTY LINES INSURANCE COMPANY
A Capital Stock Insurance Company
175 Water Street, Twelfth Floor
New York, New York 10038
[LOGO OMITTED]
A Member
Company
of American
International
Group, Inc.
NAMED INSURED: Wells Fargo Bank of Minnesota, N.A. as Trustee
for the registered holders of
Banc of America Commercial Mortgage Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2000-2
POST OFFICE: 11000 Broken Land Parkway
Columbia, MD 21044-3562
Attn: Corporate Trust Services (CMBS), Banc of America
Commercial Mortgage Inc., Series 2000-2
NOTICE: COVERAGE B PROVIDES CLAIMS-MADE-AND-REPORTED COVERAGE. PLEASE
READ CAREFULLY.
SECURED CREDITOR IMPAIRED PROPERTY POLICY
(PORTFOLIO)
DECLARATIONS
POLICY NUMBER: 341 73 32
ITEM 1: NAMED INSURED: Wells Fargo Bank of Minnesota, N.A. as Trustee
for the registered holders of
Banc of America Commercial Mortgage Inc.,
Commercial Mortgage Pass-Through Certificates, Series
2000-2
ADDRESS: 11000 Broken Land Parkway
Columbia, MD 21044-3562
Attn: Corporate Trust Services (CMBS), Banc of America
Commercial Mortgage Inc., Series 2000-2
ITEM 2: POLICY PERIOD: FROM 9/22/00 TO SEE INSURED PROPERTY ENDORSEMENTS
12:01 A.M. Standard time at the address of the Named
Insured shown above.
ITEM 3: LIMITS OF LIABILITY: Each LOSS $37,500,000
Total all LOSSes $54,000,000
ITEM 4: DEDUCTIBLE: Each LOSS $0
ITEM 5: INSURED PROPERTY(IES): SEE SCHEDULE OF INSURED PROPERTY ENDORSEMENTS
ITEM 6: POLICY PREMIUM: $34,448
BROKER: ENVIRONMENTAL CAPITAL INSURANCE BROKERAGE, INC.
226 LOWELL STREET, UNIT B-3B
WILMINGTON, MA 01887
ENDORSEMENTS: SEE FORMS SCHEDULE
/S/
-----------------------------------------------
AUTHORIZED REPRESENTATIVE
or countersignature (in states where applicable)
Copyright, American International Group, Inc., 2000
NOTICE: THIS INSURANCE IS NOT LICENSED BY THE STATE OF NEW YORK
<PAGE>
FORMS SCHEDULE
--------------
NAMED INSURED: Wells Fargo Bank of Minnesota, N.A. as Trustee
for the registered holders of
Banc of America Commercial Mortgage Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2000-2
POLICY NO: 341 73 32
EFFECTIVE 12:01 AM: 9/22/00
FORM NAME FORM NUMBER
--------------------------------------------------------------------------------
AISLIC Secured Creditor Impaired Property Policy 75795 (2/00)
Declarations Page 75794 (2/00)
Insured Property Endorsement
Amendatory Endorsement
Asbestos and Lead Based Paint Endorsement
<PAGE>
ENDORSEMENT NO. 1
FORMS OF A PART OF POLICY NUMBER: 341 73 32
ISSUED TO: Wells Fargo Bank of Minnesota, N.A. as Trustee
for the registered holders of
Banc of America Commercial Mortgage Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2000-2
BY: American International Specialty Lines Insurance Company
SCHEDULE OF INSURED PROPERTIES
------------------------------
In consideration of premium paid, it is hereby agreed that the following
property is scheduled as an INSURED PROPERTY effective 12:01 a.m. 9/22/00 and
expires 12:01 a.m. 9/22/17:
---------------------------------------------------------------
ADDRESS CITY STATE ZIP
---------------------------------------------------------------
4515 South Durango Drive Las Vegas NV 89147
---------------------------------------------------------------
12625 Frederick Street Moreno Valley CA 92553
---------------------------------------------------------------
1440 East Broadway Rd. Tempe AZ 85282
---------------------------------------------------------------
111 W. Jackson Blvd. Chicago IL 60604
---------------------------------------------------------------
16000 South Post Road Weston FL 33331
---------------------------------------------------------------
Center Drive and North Center Norfolk VA 23501
Drive
---------------------------------------------------------------
700 & 900 Sanctuary Cove Drive North Palm FL 33410
Beach
---------------------------------------------------------------
All other terms, conditions and exclusions remain the same.
/S/
-------------------------------------------
AUTHORIZED REPRESENTATIVE
or countersignature (where required by law)
<PAGE>
ENDORSEMENT NO. 2
THIS ENDORSEMENT, EFFECTIVE 12:01 AM, 9/22/00
FORMS A PART OF POLICY NO.: 341 73 32
ISSUED TO: Wells Fargo Bank of Minnesota, N.A. as Trustee
for the registered holders of
Banc of America Commercial Mortgage Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2000-2
BY: American International Specialty Lines Insurance Company
SECURED CREDITOR IMPAIRED PROPERTY ENDORSEMENT
----------------------------------------------
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY
It is hereby agreed that the Policy is amended as follows:
1. Section II. NOTICE REQUIREMENTS AND CLAIM PROVISIONS, paragraph A. is
deleted in its entirety and replaced with the following:
A. The INSURED shall give written notice to the Company, as soon as
possible but not later than forty-five (45) days after the INSURED first learns
of the DEFAULT and POLLUTION CONDITIONS with respect to Coverage A, a CLAIM with
respect to Coverage B, or POLLUTION CONDITIONS with respect to Coverage C to:
Manager, Pollution Insurance Products Unit
AIG Technical Services, Inc.
Environmental Claims Department
80 Pine Street, Sixth floor
New York, New York 10005
and
Division Attorney - Pollution Legal Liability
Commerce and Industry Insurance Company
175 Water Street
New York, New York 10038
or other address(es) as substituted by the Company in writing.
2. Section III. DUTIES OF THE INSURED IN THE EVENT OF LOSS, paragraph A is
deleted in its entirety and replaced with the following:
A. The INSURED shall furnish the following to the Company as soon as
available and practicable after the INSURED first learns of the DEFAULT and
POLLUTION CONDITIONS with respect to Coverage A, a CLAIM with respect to
Coverage B, or POLLUTION CONDITIONS with respect to Coverage C:
1. all correspondence between the INSURED and any claimant;
2. all demands, summons, notices or other processes or papers filed
with a court of law, administrative agency or investigative body;
3. all technical reports, laboratory data, field notes or any other
documents generated by persons hired by the INSURED to investigate
or remediate POLLUTION CONDITIONS;
4. all expert reports, investigations and data collected by experts
retained by the INSURED, whether or not the INSURED intends to use
the material for any purpose;
5. all other information developed or discovered by the INSURED
concerning the DEFAULT and POLLUTION CONDITIONS, or LOSS.
3. Section IV. EXCLUSIONS, paragraph G is deleted in its entirety and
replaced with the following:
G. arising from POLLUTION CONDITIONS existing prior to the effective date
of coverage for an INSURED PROPERTY if as of such date the INSURED knew that
such POLLUTION CONDITIONS could give rise to a LOSS under this Policy and failed
to disclose such POLLUTION CONDITION to the Company, or the Company did not
otherwise learn of such POLLUTION CONDITIONS from engineering reports,
environmental spreadsheets, the Secured Creditor Impaired Property
Questionnaire, or from other technical reports the Company obtained
independently.
4. Section VI. DEFINITIONS, paragraph D. CLEAN-UP COSTS, F. DEFAULT, and R.
POLLUTION CONDITIONS are deleted in their entirety and replaced with the
following, respectively:
D. CLEAN-UP COSTS means expenses, including reasonable and necessary legal
expenses incurred with the Company's written consent which consent shall not be
unreasonably withheld or delayed, incurred in the investigation (including
remedial studies and design), removal, remediation (including the associated
monitoring), or disposal of soil, surfacewater, groundwater or other
contamination:
(1) to the extent required by ENVIRONMENTAL LAWS, or by court order
or directive, the government or any political subdivision of the
United States of America or any state thereof, or Canada; or
(2) which have been actually incurred by the government or any
political subdivision of the United States of America or any state
thereof, or Canada or any province thereof, or by third-parties.
F. DEFAULT means the failure of a BORROWER to make any part of a
scheduled, periodic or final payment by the due date under the COMMERCIAL REAL
ESTATE LOAN or the BORROWER'S failure to comply with items designated as the
causes or events of default as provided by the terms of the COMMERCIAL REAL
ESTATE LOAN. The DEFAULT shall be deemed to occur on the day after such due date
under the COMMERCIAL REAL ESTATE LOAN provided that the DEFAULT was not cured
within the applicable grace period as provided by the terms of the COMMERCIAL
REAL ESTATE LOAN.
R. POLLUTION CONDITIONS means:
(1) with respect to Coverages A and C, the discharge, dispersal, release
or escape of any solid, liquid, gaseous or thermal irritant or contaminant,
including smoke, vapors, soot, fumes, acids, alkalis, toxic chemicals, hazardous
substances, and waste materials into or upon land, or any structure on land, the
atmosphere or any watercourse or body of water, including groundwater, resulting
in concentrations or amounts exceeding maximum levels allowed by applicable
ENVIRONMENTAL LAWS, or by governmental or court order or directive, acting under
the authority granted by ENVIRONMENTAL LAWS, provided such conditions are not
naturally present in the environment in the concentration or amounts discovered.
(2) with respect to Coverage B, the discharge, dispersal, release, or
escape of any solid, liquid, gaseous or thermal irritant or contaminant,
including smoke, vapors, soot, fumes, acids, alkalis, toxic chemicals, and waste
materials into or upon land, or any structure on land, the atmosphere or any
watercourse or body of water, including groundwater, provided such conditions
are not naturally present in the environment in the concentration or amounts
discovered.
5. Section VIII. CONDITIONS, paragraph A. ASSIGNMENT is deleted in its
entirety and replaced with the following:
A. ASSIGNMENT - This Policy may not be assigned without the prior written
consent of the Company which consent shall not be unreasonably withheld.
Assignment of interest under this Policy shall not bind the Company until its
consent is endorsed thereon. However, this Policy may be assigned by the NAMED
INSURED, without the Company's prior written consent to a SERVICER or TRUSTEE,
or another entity which has, directly or Indirectly, invested in or loaned money
in connection with an INSURED PROPERTY. The NAMED INSURED must provide the
Company written notice of such assignment within forty-five (45) days of the
effective date of the assignment.
All other terms, conditions end exclusions shall remain the same.
/S/
-----------------------------------------------
AUTHORIZED REPRESENTATIVE
or countersignature (in states where applicable)
<PAGE>
ENDORSEMENT NO. 3
THIS ENDORSEMENT EFFECTIVE 12:01 A.M.: 9/22/00
FORMS A PART OF POLICY NO.: 341 73 32
ISSUED TO: Wells Fargo Bank of Minnesota, N.A. as Trustee
for the registered holders of
Banc of America Commercial Mortgage Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2000-2
BY: American International Specialty Lines Insurance Company
AMENDATORY ENDORSEMENT
----------------------
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.
It is hereby agreed that Paragraphs J & K of SECTION IV. EXCLUSIONS are
deleted in their entirety and replaced with the following:
J. arising from the presence of asbestos or asbestos-containing materials
installed in or on any building or other structure. With the exception of
residential properties, this exclusion shall not apply to CLAIMS for
BODILY INJURY or government mandated CLEAN-UP COSTS on any INSURED
PROPERTY.
K. arising from the presence of lead-based paint applied to any real or
personal property on or under an INSURED PROPERTY. With the exception of
residential properties, this exclusion shall not apply to CLAIMS for
BODILY INJURY or government mandated CLEAN-UP COSTS on any INSURED
PROPERTY.
/S/
-----------------------------------------------
AUTHORIZED REPRESENTATIVE
or countersignature (in states where applicable)
<PAGE>
AMERICAN INTERNATIONAL SPECIALTY LINES INSURANCE COMPANY
SECURED CREDITOR IMPAIRED PROPERTY POLICY
THIS POLICY HAS CERTAIN PROVISIONS AND REQUIREMENTS UNIQUE TO IT AND MAY
BE DIFFERENT FROM OTHER POLICIES THE INSURED MAY HAVE PURCHASED. PLEASE READ THE
ENTIRE POLICY CAREFULLY TO DETERMINE THE INSURED'S RIGHTS AND DUTIES, AND WHAT
IS AND IS NOT COVERED. VARIOUS PROVISIONS THROUGHOUT THIS POLICY RESTRICT OR
EXCLUDE COVERAGE.
COVERAGE IS AFFORDED ONLY FOR THOSE INSURED PROPERTIES SCHEDULED ON THE
POLICY.
DEFINED TERMS APPEAR IN BOLD FACE TYPE.
In consideration of the payment of the premium, in reliance upon the
statements in the Declarations and Secured Creditor Impaired Property
Application incorporated by reference and made a part hereof, and pursuant to
all of the terms of this Policy, the Company agrees with the INSURED as follows:
I. INSURING AGREEMENT
A. COVERAGE A - DEFAULT AND POLLUTION CONDITIONS
The Company will indemnify the INSURED for LOSS, if during the
POLICY PERIOD and prior to FORECLOSURE, there is a DEFAULT by a BORROWER on a
COMMERCIAL REAL ESTATE LOAN secured by an INSURED PROPERTY, LEASEHOLD or FIXED
ASSETS, and there are POLLUTION CONDITIONS on, under or emanating from the same
INSURED PROPERTY prior to or while the COMMERCIAL REAL ESTATE LOAN is in
DEFAULT.
B. COVERAGE B - THIRD-PARTY CLAIMS
The Company agrees to pay LOSS on behalf of the INSURED that the
INSURED becomes legally obligated to pay as a result of CLAIMS first made
against the INSURED and reported to the Company, in writing, during the POLICY
PERIOD, for BODILY INJURY, PROPERTY DAMAGE or CLEAN-UP COSTS resulting from
POLLUTION CONDITIONS on, under or emanating from an INSURED PROPERTY.
C. COVERAGE C - CLEAN-UP OF POLLUTION CONDITIONS
The Company agrees to pay LOSS on behalf of the INSURED, after
FORECLOSURE, if CLEAN-UP COSTS are sustained because there are POLLUTION
CONDITIONS on, under or emanating from the INSURED PROPERTY during the POLICY
PERIOD provided that where required, such POLLUTION CONDITIONS have been
reported by the INSURED to the appropriate governmental agency in compliance
with applicable ENVIRONMENTAL LAWS, in effect as of the date of discovery.
D. LEGAL EXPENSE AND DEFENSE - COVERAGE B
The Company shall have the right and duty to investigate and defend
any CLAIM described in Coverage B. The Company's duty to defend or continue
defending any such CLAIM, and to pay any LOSS, shall cease once the applicable
limit of coverage, as described in Section V. LIMITS OF COVERAGE; DEDUCTIBLE has
been exhausted. Investigation and defense costs, charges and expenses are
included in LOSS, reduce the applicable limit of liability, and are included
within the Deductible amount shown in Item 4 of the Declarations.
Copyright, American International Group, Inc., 2000
<PAGE>
E. INDEPENDENT COUNSEL - COVERAGE B
If the INSURED is entitled by law to select independent counsel to
defend the INSURED at the Company's expense, the attorney fees and all other
litigation expenses the Company must pay to that counsel are limited to the
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
competency, including experience in defending CLAIMS or suits similar to the one
pending against the INSURED and to require such counsel to have errors and
omissions insurance coverage. As respects to such counsel, the INSURED agrees
that counsel will timely respond to the Company's request for information
regarding the CLAIM.
Furthermore, the INSURED may at any time, by its signed consent,
freely and fully waive its rights to select independent counsel.
II. NOTICE REQUIREMENTS AND CLAIM PROVISIONS
It is a condition precedent to any rights afforded under this Policy
that the INSURED provide the Company with notice of DEFAULT and POLLUTION
CONDITIONS, or LOSS as follows:
A. The INSURED SHALL give written notice to the Company, as soon as
possible but not later than forty-five (45) days after the INSURED first learns
of the DEFAULT and POLLUTION CONDITIONS, or LOSS to:
Manager, Pollution Insurance Products Unit
AIG Technical Services, Inc.
Environmental Claims Department
80 Pine Street, Sixth Floor
New York, New York 10005
and
Division Attorney - Pollution Legal Liability
American International Specialty Lines Insurance Company
175 Water Street, Twelfth Floor
New York, New York 10038
or other address(es) as substituted by the Company in writing.
B. The notice shall include, at a minimum, information sufficient to
identify the INSURED, the INSURED PROPERTY, the names of the persons with
knowledge regarding the time, place, cause, nature of and other circumstances of
the DEFAULT and POLLUTION CONDITIONS, or LOSS.
C. The notice may be provided only by the INSURED and may not be delegated
to third parties. It is not a defense to this condition precedent that the
Company learned of the DEFAULT and POLLUTION CONDITIONS, or LOSS through any
independent means.
III. DUTIES OF THE INSURED IN THE EVENT OF LOSS
A. The INSURED shall furnish the following to the Company as soon as
available and practicable after the INSURED first learns of the DEFAULT and
POLLUTION CONDITIONS, or LOSS:
Copyright, American International Group, Inc., 2000
<PAGE>
1. all correspondence between the INSURED and any claimant;
2. all demands, summons, notices or other processes or papers
filed with a court of law, administrative agency or
investigative body;
3. all technical reports, laboratory data, field notes or any
other documents generated by persons hired by the INSURED to
investigate or remediate POLLUTION CONDITIONS;
4. all expert reports, investigations and data collected by
experts retained by the INSURED, whether or not the INSURED
intends to use the material for any purpose;
5. all other information developed or discovered by the Insured
concerning the DEFAULT and POLLUTION CONDITIONS, or LOSS.
B. No INSURED shall voluntarily enter into any settlement, make any
payment, assume any obligation, or incur any costs, charges or expenses in the
defense or Investigation of a CLAIM without the Company's consent, which shall
not be unreasonably withheld or delayed, except at the INSURED'S own cost, or in
response to an emergency or pursuant to ENVIRONMENTAL LAWS which require
immediate remediation of POLLUTION CONDITIONS.
C. If the INSURED refuses to consent to any settlement within the limits
of coverage of this Policy recommended by the Company and acceptable to the
claimant, the Company's duty to defend the INSURED shall then cease and the
INSURED shall thereafter negotiate or defend such Claim independently of the
Company and the Company's liability shall not exceed the amount, less the
Deductible or any outstanding Deductible balance, for which the CLAIM could have
been settled if such recommendation was consented to.
D. The INSURED must cooperate with the Company and after all reasonable
assistance in the investigation and defense of CLAIMS. The Company may require
that the INSURED submit to examination under oath, and attend hearings,
depositions and trials. In the course of investigation or defense, the Company
may require written statements or the INSURED'S attendance at meetings with the
Company. The INSURED must reasonably assist the Company in effecting settlement,
securing and providing evidence and obtaining the attendance of witnesses, all
without charge to the Company.
IV. EXCLUSIONS
This Policy does not apply to LOSS:
A. due to or for any punitive, exemplary or multiplied portion of multiple
damages or any civil or administrative fines, penalties or assessments, except
where such damages, fines, penalties or assessments are insurable by applicable
law; or any criminal fines, penalties or assessments.
B. arising as a result of liability of others assumed by the Insured under
any contract or agreement, unless the liability of the Insured would have
attached in the absence of such contract or agreement.
C. arising out of any obligation of the Insured under any worker's
compensation, unemployment compensation or disability benefits law or similar
law.
D. arising from BODILY INJURY to an employee of the INSURED or its
parent, subsidiary or affiliate arising out of and in the course of employment
by the INSURED or its parent, subsidiary or affiliate. This exclusion applies
(1) whether the INSURED may be liable as an employer or in any other capacity;
and (2) to any obligation to share damages with or repay third parties that must
pay damages because of this injury.
Copyright, American International Group, Inc., 2000
<PAGE>
E. arising from Pollution Conditions resulting from or attributable to
the Insured's intentional, knowing, willful or deliberate noncompliance with any
statute, regulation, ordinance, administrative complaint, notice of violation,
notice letter, executive order, or instruction of any governmental agency or
body.
F. arising from Pollution Conditions resulting from an intentionally
illegal act or omission of the Insured, if the Insured knew that the Pollution
Conditions would result.
G. arising from POLLUTION CONDITIONS existing prior to the effective
date of coverage for an INSURED PROPERTY, and not otherwise specifically
excluded by endorsement to this Policy, if as of such date the INSURED knew that
such POLLUTION CONDITIONS could give rise to a LOSS under this Policy and failed
to disclose such POLLUTION CONDITIONS to the Company, or the Company did not
otherwise learn of such POLLUTION CONDITIONS from engineering reports,
environmental spreadsheets, the Secured Creditor Impaired Property
Questionnaire, or from other technical reports the Company obtained
independently.
H. by one Insured against any other person or entity who is also an
Insured under this Policy.
I. for costs, charges or expenses incurred by the Insured for goods
supplied or services performed by the staff or salaried employees of the
Insured, or its parent, subsidiary or affiliate, unless such costs, charges or
expenses are incurred with the prior written approval of the Company in its sole
discretion.
J. arising from the presence of asbestos or any asbestos-containing
materials installed in or on any building or other structure.
K. arising from the presence of lead-based paint applied to any real or
personal property on or under an INSURED PROPERTY.
V. LIMITS OF COVERAGE; DEDUCTIBLE
Regardless of the number of POLLUTION CONDITIONS, INSUREDS, CLAIMS,
LOSSES or claimants under this Policy, the following limits of coverage apply:
A. POLICY AGGREGATE LIMIT
The Company's total liability for all LOSS covered under this Policy
shall not exceed the "Total all LOSSes" stated in Item 3 of the Declarations.
The purchase of an Extended Reporting Period pursuant to Section VII. of this
Policy shall not serve to reinstate or increase the "Total all LOSSes".
B. EACH LOSS LIMIT
Subject to and included in the limit of liability described In
Paragraph A. above, the most the Company will pay in excess of the deductible
amount shown in Item 4 of the Declarations for each LOSS under Coverage A and B,
and for all CLEAN-UP COSTS arising from the same, continuous or related
POLLUTION CONDITIONS under Coverage C, is the "Each LOSS" limit of liability
shown in Item 3 of the Declarations.
C. RELATED POLLUTION CONDITIONS
1. Solely with respect to COVERAGE B, if a Claim for BODILY INJURY,
PROPERTY DAMAGE or CLEAN-UP COSTS is first made against the INSURED and reported
to thE Company during this POLICY PERIOD, all Claims for BODILY INJURY, PROPERTY
DAMAGE or CLEAN-UP COSTS arising from the same, continuous or related POLLUTION
CONDITIONS, which are made against the INSURED and reported under a subsequent
Secured Creditor Impaired Property Policy issued by the Company or its
affiliate, shall be deemed to have been first made and reported under this
Policy and shall be subject to the Limits of Liability under this Policy.
Copyright, American International Group, Inc., 2000
<PAGE>
Coverage under this Policy for such CLAIMS made against the INSURED
and reported under a subsequent Secured Creditor Impaired Property Policy as
described in Paragraph 1. above, shall not apply unless at the time such CLAIMS
are first made and reported the INSURED has maintained with the Company or its
affiliate Secured Creditor Impaired Property coverage substantially the same as
this coverage on a successive, uninterrupted basis since the first such CLAIM
was made against the INSURED and reported to the Company.
2. All LOSS arising from the same, continuous, or related POLLUTION
CONDITIONS shall be subject to one "Each LOSS" limit of liability. In the event
coverage is provided under more than one of Coverages A, B and C, only one "Each
LOSS" limit stated in Item 3 of the Declarations shall apply.
D. DEDUCTIBLE
Subject to Section V. LIMITS OF COVERAGE; DEDUCTIBLE, Paragraphs A.,
and B. above, this Policy is to pay all LOSS in excess of the "Each LOSS"
Deductible amount stated in Item 4 of the Declarations. The Deductible amount
includes investigation and defense costs, charges and expenses, and applies to
all LOSS arising from the same, related or continuous POLLUTION CONDITIONS.
The INSURED shall promptly reimburse the Company for advancing any
payment of LOSS falling within the Deductible.
VI. DEFINITIONS
A. BODILY INJURY means physical injury, sickness, disease, mental anguish
or emotional distress sustained by any person, including death resulting
therefrom.
B. BORROWER means any obligor on a COMMERCIAL REAL ESTATE LOAN,
including without limitation, any guarantor therefor, the holder of any
ownership interest in an INSURED PROPERTY and any other person, entity or
organization controlled by or under common control of the obligor.
C. CLAIM means a written demand received by the INSURED seeking a
remedy and alleging liability or responsibility on the part of the INSURED for
LOSS under Coverage B.
D. CLEAN-UP COSTS means expenses. including reasonable and necessary
legal expenses, incurred with the Company's written consent, incurred in the
investigation (including remedial studies and design), removal, remediation
(including the associated monitoring), or disposal of soil, surfacewater,
groundwater or other contamination:
(1) to the extent required by ENVIRONMENTAL LAWS, or specifically
mandated by court order, the government or any political
subdivision of the United States of America or any state
thereof, or Canada; or
(2) which have been actually incurred by the government or any
political subdivision of the United States of America or any
state thereof, or Canada or any province thereof, or by
third-parties.
E. COMMERCIAL REAL ESTATE LOAN means an obligation evidenced by loan
documents which is secured by the INSURED PROPERTY, LEASEHOLD or FIXED ASSETS as
scheduled In Item 5 of the Declarations, and in which loan documents the INSURED
relies upon such INSURED PROPERTY, LEASEHOLD or FIXED ASSETS as security for the
loan and obtains a perfected mortgage or oilier security interest.
F. DEFAULT means the failure of a BORROWER to make any part of a
scheduled, periodic or final payment by the due date under the COMMERCIAL REAL
ESTATE LOAN or the BORROWER'S failure to comply with items
Copyright, American International Group, Inc., 2000
<PAGE>
designated as the causes or events of default as provided by the terms of the
COMMERCIAL REAL ESTATE LOAN. The DEFAULT shall be deemed to occur on the day
after such due date under the COMMERCIAL REAL ESTATE LOAN provided that the
DEFAULT was not cured within the applicable grace period as provided by the
terms of the COMMERCIAL REAL ESTATE LOAN. For purposes of this Policy, the mere
presence of a POLLUTION CONDITION shall not be deemed a cause or event of
default.
G. ENVIRONMENTAL LAWS means any federal, state or local laws (including
but not limited to statutes, regulations, rules, ordinances, guidance documents,
and governmental or administrative orders and directives) which are applicable
to POLLUTION CONDITIONS.
H. FIXED ASSETS means fixtures, plant and equipment at or on an INSURED
PROPERTY owned by the BORROWER, which are depreciated over their useful life.
I. FORECLOSURE means taking title to an interest in the INSURED
PROPERTY, LEASEHOLD or FIXED ASSETS through the enforcement of a lien, mortgage,
deed of trust or other secured interest under a COMMERCIAL REAL ESTATE LOAN,
whether through legal proceedings or otherwise.
J. INSURED means the NAMED INSURED, TRUSTEE or SERVICER, and any
director, officer, partner or employee thereof while acting within the scope of
his or her duties as such, and any such additional INSURED added by endorsement
to this Policy.
K. INSURED PROPERTY means the real property, including any FIXED ASSETS
or LEASEHOLD, scheduled in Item 5. of the Declarations on the date of the LOSS.
L. LEASEHOLD means the BORROWER'S right to possession of leased INSURED
PROPERTY pursuant to a written lease agreement.
M. LOSS means:
1. With respect to Coverage A, the OUTSTANDING BALANCE on the
date of DEFAULT, including principal and accrued interest from
the date of DEFAULT until the date that the OUTSTANDING
BALANCE is paid, plus interest on any advances of scheduled
monthly payments made by the INSURED from the date of DEFAULT,
plus advances and interest on advances for PROPERTY PROTECTION
actually paid by the INSURED pursuant to the COMMERCIAL REAL
ESTATE LOAN or, if applicable, a POOLING AND SERVICING
AGREEMENT. Such advances and interest on advances made for
PROPERTY PROTECTION are limited to ten (10) percent of the
OUTSTANDING BALANCE on the date of DEFAULT.
2. With respect to Coverage B, (a) monetary awards or settlements
of compensatory damages for BODILY INJURY, PROPERTY DAMAGE or
CLEAN-UP COSTS; (b) CLEAN-UP COSTS; and (c) costs, charges and
expenses incurred in the defense, investigation and adjustment
of CLAIMS.
3. With respect to Coverage C, Clean-Up Costs.
N. NAMED INSURED means the party, person or entity named in Item 1 of
the Declarations.
O. NATURAL RESOURCE DAMAGE means physical injury to or destruction of,
including the resulting loss of value of, land, fish, wildlife, biota, air,
water, groundwater, drinking water supplies, and other such resources belonging
to, managed by, held in trust by, appertaining to, or otherwise controlled by
the United States (including the resources of the fishery conservation zone
established by the Magnuson-Stevens Fishery Conservation and Management Act (16
U.S.C. 1801 et seq.)), any state or local government, any foreign government,
any Indian tribe, or, if such resources are subject to a trust restriction on
alienation, any member of an Indian tribe.
Copyright, American International Group, Inc., 2000
<PAGE>
P. OUTSTANDING BALANCE means the principal amount of outstanding
indebtedness owed to the INSURED as of the date of DEFAULT calculated pursuant
to the terms and conditions of the COMMERCIAL REAL ESTATE LOAN plus interest as
described in the definition of LOSS. OUTSTANDING BALANCE shall not include
penalties or other fees arising out of a DEFAULT.
Q. POLICY PERIOD means the period set forth in Item 2 of the
Declarations or any shorter period arising as a result of:
1. cancellation of this Policy; or
2. the deletion by the Company of a particular INSURED PROPERTY
at the NAMED INSURED'S written request, but solely with
respect to that INSURED PROPERTY.
R. POLLUTION CONDITIONS MEANS:
1. with respect to Coverages A and C, the discharge, dispersal,
release or escape of any solid, liquid, gaseous or thermal irritant or
contaminant, including smoke, vapors, soot, fumes, acids, alkalis, toxic
chemicals, and waste materials into or upon land, or any structure on land, the
atmosphere or any watercourse or body of water, including groundwater, in
concentrations or amounts exceeding maximum levels allowed by applicable
ENVIRONMENTAL LAWS, or by governmental or court order or directive, acting under
the authority granted by ENVIRONMENTAL LAWS, provided such conditions are not
naturally present in the environment in the concentration or amounts discovered.
2. with respect to Coverage B, the discharge, dispersal, release, or
escape of any solid, liquid, gaseous or thermal irritant or contaminant,
including smoke, vapors, soot, fumes, acids, alkalis, toxic chemicals, and waste
materials into or upon land, or any structure on land, the atmosphere or any
watercourse or body of water, including groundwater, provided such conditions
are not naturally present in the environment in the concentration or amounts
discovered.
S. POOLING AND SERVICING AGREEMENT means the agreement governing the
servicing of the COMMERCIAL REAL ESTATE LOAN(S).
T. PROPERTY DAMAGE means:
1. Physical injury to or destruction of tangible property of
parties other than the INSURED, including the resulting loss
of use or diminution in value thereof;
2. LOSS of use, but not diminution In value, of tangible property
of parties other than the INSURED, which has not been
physically injured or destroyed;
3. NATURAL RESOURCE DAMAGE.
U. PROPERTY PROTECTION means reasonable expenses necessary to protect
the INSURED PROPERTY.
V. SERVICER means the party(ies) to the POOLING AND SERVICING AGREEMENT
responsible for servicing the COMMERCIAL REAL ESTATE LOAN(S).
W. TRUSTEE means the trustee under the POOLING AND SERVICING AGREEMENT.
Copyright, American International Group, Inc., 2000
<PAGE>
VII. EXTENDED REPORTING PERIOD - COVERAGE B
Solely with respect to Coverage B, the INSURED shall be entitled to an
Automatic Extended Reporting Period, and (with certain exceptions as described
in paragraph B. of this Section) entitled to purchase an Optional Extended
Reporting Period Endorsement upon termination of coverage as defined in
Paragraph B.3. of this Section. Neither the Automatic nor the Optional Extended
Reporting Period shall reinstate or increase the Policy Aggregate Limit of this
Policy.
A. AUTOMATIC EXTENDED REPORTING PERIOD
Provided the INSURED has not purchased any other insurance to
replace Coverage B which applies to a CLAIM otherwise covered under Coverage B,
the NAMED INSURED shall have a period of forty-five (45) days following the
effective date of termination or coverage in which to provide written notice to
the Company of Claims first made and reported within the Automatic Extended
Reporting Period. A Claim first made and reported within the Automatic Extended
Reporting Period will be deemed made on the last day of the Policy Period,
provided the Claim arises from Pollution Conditions that commenced before the
end of the Policy Period and is otherwise covered by this Policy. The Automatic
Extended Reporting Period shall not apply if the Optional Extended Reporting
Period becomes effective.
B. OPTIONAL EXTENDED REPORTING PERIOD
The NAMED INSURED shall be entitled to purchase an Optional Extended
Reporting Period upon termination of coverage, as defined in Paragraph 3. below,
except in the event of nonpayment of premium.
1. A CLAIM first made and reported within the Optional Extended
Reporting Period, if purchased in accordance with the provisions contained in
Paragraph 2 below, will be deemed to have been made on the last day of the
POLICY PERIOD, provided that the CLAIM arises from POLLUTION CONDITIONS that
commenced before the end of the POLICY PERIOD and is otherwise covered by this
Policy.
2. The Company shall issue an endorsement providing an Optional
Extended Reporting Period of up to thirty-six (36) months from termination of
coverage under this Policy for any INSURED PROPERTY provided that the NAMED
INSURED:
a. makes a written request for such endorsement which the
Company receives within forty-five (45) days after
termination of coverage as defined herein; and
b. pays the additional premium when due. If that additional
premium is paid when due, the Optional Extended
Reporting Period may not be canceled, provided that all
other terms and conditions of the Policy are met.
3. Termination of coverage occurs at the time of:
a. cancellation or nonrenewal of this Policy by the NAMED
INSURED or by the Company;
b. the Company's deletion from Item 5 of the Declarations
of this Policy of a location which was an INSURED
PROPERTY, at the INSURED's written request, but solely
with respect to that INSURED PROPERTY.
4. The Optional Extended Reporting Period is available to the NAMED
INSURED for not more than 200% of the premium the Company has charged for the
INSURED PROPERTY for which the Extended Reporting Period is purchased.
Copyright, American International Group, Inc., 2000
<PAGE>
VIII. CONDITIONS
A. ASSIGNMENT - This Policy may not be assigned without the prior
written consent of the Company which consent shall not be unreasonably withheld.
Assignment of interest under this Policy shall not bind the Company until its
consent is endorsed thereon. However, this Policy may be assigned by the NAMED
INSURED, without the Company's prior written consent to the SERVICER or TRUSTEE,
or another entity which has, directly or indirectly, invested in or loaned money
in connection with an INSURED PROPERTY. The NAMED INSURED must provide the
Company written notice of such assignment within forty-five (45) days of the
effective date of the assignment.
B. SUBROGATION
1. To the extent of any payment under this Policy, the Company shall
be subrogated to all the INSURED'S rights of recovery therefor against any
person or organization, with the exception of the BORROWER; provided that if the
Company indemnifies the INSURED for the OUTSTANDING BALANCE under Coverage A,
the Company reserves its right of FORECLOSURE against the Borrower.
2. The INSURED shall execute and deliver instruments and papers and
do whatever else is reasonably necessary to secure such rights including without
limitation, assignment of the INSURED'S rights against any person or
organization, with the exception of the BORROWER, who caused POLLUTION
CONDITIONS on account of which the Company made any payment under this Policy.
3. Any recovery as a result of subrogation proceedings shall accrue
first to the INSURED to the extent of any LOSS in excess of the limit of
coverage, then to the Company to the extent of its payment under the policy, and
then to the INSURED to the extent of its Deductible. Expenses incurred in such
subrogation proceedings shall be apportioned among the interested parties in the
recovery in the proportion that each interested party's share in the recovery
bears to the total recovery. Any recoveries received by the Company via
subrogation net of expenses incurred in making such recovery shall serve to
reinstate the "Total all LOSSes" limit of liability stated in Item 3 of the
Declarations, but only to the extent of such net recovery.
4. The INSURED shall do nothing to prejudice the Company's
rights of Subrogation.
C. CHANGES - Notice to any agent or knowledge possessed by any agent or
by any other person shall not effect a waiver or a change in any part of this
Policy or estop the Company from asserting any right under the terms of this
Policy; nor shall the terms of this Policy be waived or changed, except by
endorsement issued to form a part of this Policy.
D. SOLE AGENT - The NAMED INSURED first listed in Item 1 of the
Declarations shall act on behalf of all other INSUREDS, if any, for the payment
or return of premium, receipt and acceptance of any endorsement issued to form a
part of this Policy, and giving and receiving notice of cancellation or
nonrenewal and the exercise of the rights provided in the EXTENDED REPORTING
PERIOD clause.
E. CANCELLATION - This Policy may be canceled by the INSURED by
surrender thereof to the Company or any of its authorized agents or by mailing
to the Company written notice stating when thereafter the cancellation shall be
effective.
This Policy may be canceled by the Company only for nonpayment of
premium by mailing to the NAMED INSURED at the address shown in the Policy,
written notice stating when not less than ten (10) days thereafter cancellation
shall be effective. Proof of mailing of notice described In this Condition E.
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. If the NAMED INSURED cancels, earned premium shall be computed in
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<PAGE>
accordance with the customary short rate table. If the Company cancels, earned
premium shall be computed pro rata. Premium adjustment may be either at the time
cancellation is effected or as soon as practicable after cancellation becomes
effective, but payment or tender of unearned premium is not a condition of
cancellation.
F. TERMINATION OF COVERAGE - In the event of the INSURED'S sale of a
COMMERCIAL REAL ESTATE LOAN, coverage under Coverages A and C will automatically
terminate as of the effective date of such sale for any INSURED PROPERTY
included in such sale. Coverage B, however, will continue for such INSURED
PROPERTY for the remainder of the POLICY PERIOD and EXTENDED REPORTING PERIOD,
if applicable.
G. CONCEALMENT OR FRAUD - This entire Policy shall be void if, whether
before or after LOSS is incurred or a CLAIM is first made, the Insured has
willfully concealed or misrepresented any fact or circumstance in the Secured
Creditor Impaired Property Application material to the granting of coverage
under this Policy. In addition, coverage for any individual INSURED PROPERTY
shall be void if, whether before or after LOSS is incurred or a CLAIM is first
made, the INSURED has willfully concealed or misrepresented any fact or
circumstance material to the granting of coverage for the INSURED PROPERTY under
this Policy.
H. OTHER INSURANCE
1. Coverage A.
This insurance is primary. Our obligations are not affected by
any other insurance that may be primary.
2. Coverages B and C.
(a) This insurance is primary. Our obligations are not
effected unless any other insurance applicable to LOSS
covered by this Policy is also primary. Then, we will
share with all other insurance by the method described
in paragraphs (b) and (c) below.
(b) If other primary insurance permits contribution by equal
shares, we will follow this method also. Under this
approach each insurer contributes equal amounts until it
has paid its applicable limit of insurance or none of
the loss remains, whichever comes first.
(c) If any other insurance does not permit contribution by
equal shares, we will contribute by limits. Under this
method, each insurers share is based on the ratio of its
applicable limit of insurance to the total applicable
limits of insurance of all primary insurers.
I. RIGHT OF ACCESS AND INSPECTION - Any of the Company's authorized
representatives shall have the right and opportunity but not the obligation when
the Company so desires to interview persons employed by the INSURED and to
inspect at any reasonable time, during the POLICY PERIOD or thereafter, an
INSURED PROPERTY for which the INSURED holds title, and applicable records for
COMMERCIAL REAL ESTATE LOANS. Neither the Company nor its representatives shall
assume any responsibility or duty to the INSURED or to any other party, person
or entity, by reason of such right of inspection. Neither the Company's right to
make inspections, sample and monitor nor the actual undertaking thereof nor any
report thereon shall constitute an undertaking on behalf of the INSURED or
others, to determine or warrant that property or operations are safe, healthful
or conform to acceptable engineering practices or are in compliance with any
law, rule or regulation. The INSURED agrees to provide appropriate personnel to
assist the Company's representatives during any inspection.
J. REPRESENTATIONS - By acceptance of this Policy, the first NAMED
INSURED agrees that the statements in the Declarations and Secured Creditor
Impaired Property Application are its agreements and
Copyright, American International Group, Inc., 2000
<PAGE>
representations, that this Policy is issued in reliance upon the truth of such
representations and that this Policy embodies all agreements existing between
any INSURED and the Company or any of its agents relating to this insurance.
K. ACTION AGAINST COMPANY - No person or organization has a right under
this Policy:
1. to join the Company as a party or otherwise bring the Company
into a suit asking for damages from an INSURED; or
2. to sue the Company on this Policy unless all of its terms have
been fully complied with.
A person or organization may sue the Company to recover on an agreed
settlement or on a final judgment against an INSURED obtained after an actual
trial; but the Company will not be liable for damages that are not payable under
the terms of this Policy or that are in excess of the applicable limit of
liability. An agreed settlement means a settlement and release of liability
signed by the Company, the INSURED and the claimant or the claimants legal
representative.
L. BANKRUPTCY - Bankruptcy or insolvency of the Insured or of the
Insured's estate shall not relieve the Company of any of its obligations
hereunder.
M. ARBITRATION - It is hereby understood and agreed that all disputes or
differences which may arise under or in connection with this Policy, whether
arising before or after termination of this Policy, including any determination
of the amount of LOSS, shall be submitted to the American Arbitration
Association under and in accordance with its then prevailing commercial
arbitration rules. The arbitrators shall be chosen in the manner and within the
time frames provided by such rules. If permitted under such rules, the
arbitrators shall be three disinterested individuals having knowledge of the
legal, corporate management, or insurance issues relevant to the matters in
dispute.
Any party may commence such arbitration proceeding and the
arbitration shall be conducted in New York, New York. The arbitrators shall give
due consideration to the general principles of New York law in the construction
and interpretation of the provisions of this Policy; provided, however, that the
terms, conditions, provisions and exclusions of this Policy are to be construed
in an evenhanded fashion as between the parties. Where the language of this
Policy is alleged to be ambiguous or otherwise unclear, the issue shall be
resolved in the manner most consistent with the relevant terms, conditions,
provisions or exclusions of the Policy (without regard to the authorship of the
language, the doctrine of reasonable expectation of the parties and without any
presumption or arbitrary interpretation or construction in favor of either party
or parties, and in accordance with the intent of the parties.)
The written decision of the arbitrators shall set forth its
reasoning, shall be provided simultaneously to both parties and shall be binding
on them. The arbitrators' award shall not include attorney fees or other costs.
Judgment on the award may be entered in any court of competent jurisdiction.
Each party shall bear equally the expenses of the arbitration.
N. SERVICE OF SUIT - Subject to Paragraph M. above, it is agreed that
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.
Nothing in this condition constitutes or should be understood to constitute a
waiver of the Company's rights to commence an action in any court of competent
jurisdiction in the United States, to remove an action to a United States
District Court, or to seek a transfer of a case to another court as permitted by
the laws of the United States or of any state in the United States. It is
further agreed that service of process in such suit may be made upon General
Counsel, Legal Department, American International Specialty Lines Insurance
Company, 70 Pine Street, New York, New York 10270, or his or her representative,
and that in any suit instituted against the Company upon this contract, the
Company will abide by the final decision of such court or of any appellate court
in the event of any appeal.
Copyright, American International Group, Inc., 2000
<PAGE>
Further, pursuant to any statute of any state, territory, or
district of the United States which makes provision therefore, the Company
hereby designates the Superintendent, Commissioner, Director of Insurance, or
other officer specified for that purpose in the statute, or his or her successor
or successors in office 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 contract of
insurance, and hereby designates the above named General Counsel as the person
to whom the said officer authorized to mail such process or a true copy thereof.
O. SOLD LOANS - In the event a COMMERCIAL REAL ESTATE LOAN(S) is sold by
the INSURED, the Company agrees to offer coverage to the new owner of the
COMMERCIAL REAL ESTATE LOAN(S) identical to coverage provided the INSURED under
this Policy. The per INSURED PROPERTY premium to be charged to the new owner of
the COMMERCIAL REAL ESTATE LOAN(S) will be equal to the pro rats premium
applying to an INSURED PROPERTY as of the date of sale plus not more than $100
per INSURED PROPERTY. Additional premium may be charged to the new owner of the
COMMERCIAL REAL ESTATE LOAN for negotiated differences in terms and conditions,
including but not limited to, POLICY PERIOD, limits of liability and deductible.
P. LENDER LIABILITY - The existence of any legal protection for the
INSURED against liability of any kind whatsoever in connection with POLLUTION
CONDITIONS, including but not limited to the secured creditor exemption in
Section 9601(2) of the Comprehensive Environmental Response, Compensation and
Liability Act, 42 U.S.C. Sec. 9601 et seq., shall in no way affect the rights of
the INSURED under this Policy. Any failure of the INSURED to qualify for such
protection shall not in and of itself trigger Exclusion IV.E or in any other way
affect the rights of the INSURED under this Policy.
IN WITNESS WHEREOF, the Company has caused this Policy to be signed by its
president and secretary and signed on the Declarations page by its duly
authorized representative or countersigned in states where applicable.
/S/ /S/
------------------------------------ ---------------------------------------
SECRETARY PRESIDENT
Copyright, American International Group, Inc., 2000
<PAGE>
AMERICAN INTERNATIONAL
SPECIALTY LINES INSURANCE COMPANY
A Capital Stock Insurance Company
175 Water Street, Twelfth Floor
New York, New York 10038
[LOGO OMITTED]
A Member
Company
of American
International
Group, Inc.
NAMED INSURED: Wells Fargo Bank of Minnesota, N.A. as Trustee
for the registered holders of
Banc of America Commercial Mortgage Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2000-2
POST OFFICE: 11000 Broken Land Parkway
Columbia, MD 21044-3562
Attn: Corporate Trust Services (CMBS), Banc of America
Commercial Mortgage Inc., Series 2000-2
NOTICE: COVERAGE B PROVIDES CLAIMS-MADE-AND-REPORTED COVERAGE. PLEASE
READ CAREFULLY.
SECURED CREDITOR IMPAIRED PROPERTY POLICY
(PORTFOLIO)
DECLARATIONS
POLICY NUMBER: 341 73 35
ITEM 1: NAMED INSURED: Wells Fargo Bank of Minnesota, N.A. as Trustee
for the registered holders of
Banc of America Commercial Mortgage Inc.,
Commercial Mortgage Pass-Through Certificates, Series
2000-2
ADDRESS: 11000 Broken Land Parkway
Columbia, MD 21044-3562
Attn: Corporate Trust Services (CMBS), Banc of America
Commercial Mortgage Inc., Series 2000-2
ITEM 2: POLICY PERIOD: FROM 9/22/00 TO 9/22/17
12:01 A.M. Standard time at the address of the
Named Insured shown above.
ITEM 3: LIMITS OF LIABILITY: Each LOSS $2,500,000
Total all LOSSes $2,500,000
ITEM 4: DEDUCTIBLE: Each LOSS $0
ITEM 5: INSURED PROPERTY(IES): SEE SCHEDULE OF INSURED PROPERTY ENDORSEMENTS
ITEM 6: POLICY PREMIUM: $1,000
BROKER: ENVIRONMENTAL CAPITAL INSURANCE BROKERAGE, INC.
226 LOWELL STREET, UNIT B-3B
WILMINGTON, MA 01887
ENDORSEMENTS: SEE FORMS SCHEDULE
/S/
-----------------------------------------------
AUTHORIZED REPRESENTATIVE
or countersignature (in states where applicable)
Copyright, American International Group, Inc., 2000
NOTICE: THIS INSURANCE IS NOT LICENSED BY THE STATE OF NEW YORK
<PAGE>
FORMS SCHEDULE
--------------
NAMED INSURED: WELLS FARGO BANK OF MINNESOTA, N.A. AS TRUSTEE
FOR THE REGISTERED HOLDERS OF
BANC OF AMERICA COMMERCIAL MORTGAGE INC.,
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2000-2
POLICY NO: 341 73 35
EFFECTIVE 12:01 AM: 9/22/00
FORM NAME FORM NUMBER
--------------------------------------------------------------------------------
AISLIC Secured Creditor Impaired Property Policy 75795 (2/00)
Declarations Page 75794 (2/00)
Insured Property Endorsement
Amendatory Endorsement
Asbestos and Lead Based Paint Endorsement
<PAGE>
ENDORSEMENT NO. 1
FORMS A PART OF POLICY NUMBER: 341 73 35
ISSUED TO: Wells Fargo Bank of Minnesota, N.A. as Trustee
for the registered holders of
Banc of America Commercial Mortgage, Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2000-2
BY: American International Specialty Lines Insurance Company
SCHEDULE OF INSURED PROPERTIES
------------------------------
In consideration of premium paid, it is hereby agreed that the following
property is scheduled as an INSURED PROPERTY effective 12:01 a.m. 9/22/00 and
expires 12:01 a.m. 9/22/17:
--------------------------------------------------------------------------------
ADDRESS CITY STATE ZIP
--------------------------------------------------------------------------------
281 N. Spring Street Sparta TN 38583
--------------------------------------------------------------------------------
All other terms, conditions and exclusions remain the same.
/S/
------------------------------------------
AUTHORIZED REPRESENTATIVE
or countersignature (where required by law)
<PAGE>
ENDORSEMENT NO. 2
THIS ENDORSEMENT, EFFECTIVE 12:01 AM, 9/22/00
FORMS A PART OF POLICY NO.: 341 73 35
ISSUED TO: Wells Fargo Bank of Minnesota, N.A. as Trustee
for the registered holders of
Banc of America Commercial Mortgage Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2000-2
BY: American International Specialty Lines Insurance Company
SECURED CREDITOR IMPAIRED PROPERTY ENDORSEMENT
----------------------------------------------
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY
It is hereby agreed that the Policy is amended as follows:
1. Section II. NOTICE REQUIREMENTS AND CLAIM PROVISIONS, paragraph A is
deleted in its entirety and replaced with the following:
A. The INSURED shall give written notice to the Company, as soon as
possible but not later than forty-five (45) days after the INSURED first
learns of the DEFAULT and POLLUTION CONDITIONS with respect to Coverage A,
a CLAIM with respect to Coverage B, or POLLUTION CONDITIONS with respect
to Coverage C to:
Manager, Pollution Insurance Products Unit
AIG Technical Services, Inc.
Environmental Claims Department
80 Pine Street, Sixth Floor
New York, New York 10005
and
Division Attorney - Pollution Legal Liability
Commerce and Industry Insurance Company
175 Water Street
New York, New York 10038
or other address(es) as substituted by the Company in writing.
2. Section III. DUTIES OF THE INSURED IN THE EVENT OF LOSS, paragraph A is
deleted in its entirety and replaced with the following:
A. The INSURED shall furnish the following to the Company as soon as
available and practicable after the INSURED first learns of the DEFAULT
and POLLUTION CONDITIONS with respect to Coverage A, a CLAIM with respect
to Coverage B, or POLLUTION CONDITIONS with respect to Coverage C:
1. all correspondence between the Insured and any claimant;
2. all demands, summons, notices or other processes or papers
filed with a court of law, administrative agency or
investigative body;
3. all technical reports, laboratory data, field notes or any
other documents generated by persons hired by the INSURED to
investigate or remediate POLLUTION CONDITIONS;
4. all expert reports, investigations and data collected by
experts retained by the INSURED, whether or not the INSURED
intends to use the material for any purpose;
5. all other information developed or discovered by the INSURED
concerning the DEFAULT and POLLUTION CONDITIONS, or LOSS.
3. Section IV. EXCLUSIONS, paragraph G is deleted in its entirety and
replaced with the following:
G. arising from POLLUTION CONDITIONS existing prior to the effective
date of coverage for an INSURED PROPERTY if as of such date the INSURED
knew that such POLLUTION CONDITIONS could give rise to a LOSS under this
Policy and failed to disclose such POLLUTION CONDITIONS to the Company, or
the Company did not otherwise learn of such POLLUTION CONDITIONS from
engineering reports, environmental spreadsheets, the Secured Creditor
Impaired Property Questionnaire, or from other technical reports the
Company obtained independently.
4. Section VI. DEFINITIONS, paragraph D. CLEAN-UP COSTS, F. DEFAULT, and R.
POLLUTION CONDITIONS are deleted in their entirety and replaced with the
following, respectively:
D. CLEAN-UP COSTS means expenses, including reasonable and necessary
legal expenses incurred with the Company's written consent which consent
shall not be unreasonably withheld or delayed, incurred in the
investigation (including remedial studies and design), removal,
remediation (including the associated monitoring), or disposal of soil,
surfacewater, groundwater or other contamination;
(1) to the extent required by ENVIRONMENTAL LAWS, or by court order
or directive, the government or any political subdivision of the
United States of America or any state thereof, or Canada; or
(2) which have been actually incurred by the government or any
political subdivision of the United States of America or any state
thereof, or Canada or any province thereof, or by third-parties.
F. DEFAULT means the failure of a BORROWER to make any part of a
scheduled, periodic or final payment by the due date under the COMMERCIAL
REAL ESTATE LOAN or the BORROWER'S failure to comply with items designated
as the causes or events of default as provided by the terms of the
COMMERCIAL REAL ESTATE LOAN. The DEFAULT shall be deemed to occur on the
day after such due date under the COMMERCIAL REAL ESTATE LOAN provided
that the DEFAULT was not cured within the applicable grace period as
provided by the terms of the COMMERCIAL REAL ESTATE LOAN.
R. POLLUTION CONDITIONS means:
(1) with respect to Coverages A and C, the discharge, dispersal,
release or escape of any solid, liquid, gaseous or thermal irritant or
contaminant, including smoke, vapors, soot, fumes, acids, alkalis, toxic
chemicals, hazardous substances, and waste materials into or upon land, or
any structure on land, the atmosphere or any watercourse or body of water,
including groundwater, resulting in concentrations or amounts exceeding
maximum levels allowed by applicable ENVIRONMENTAL LAWS, or by
governmental or court order or directive, acting under the authority
granted by ENVIRONMENTAL LAWS, provided such conditions are not naturally
present in the environment in the concentration or amounts discovered.
(2) with respect to Coverage B, the discharge, dispersal, release,
or escape of any solid, liquid, gaseous or thermal irritant or
contaminant, including smoke, vapors, soot, fumes, acids, alkalis, toxic
chemicals, and waste materials into or upon land, or any structure on
land, the atmosphere or any watercourse or body of water, including
groundwater, provided such conditions are not naturally present in the
environment in the concentration or amounts discovered.
5. Section VIII. CONDITIONS, paragraph A. ASSIGNMENT is deleted in its
entirety and replaced with the following:
A. ASSIGNMENT - This Policy may not be assigned without the prior
written consent of the Company which consent shall not be unreasonably
withheld. Assignment of interest under this Policy shall not bind the
Company until its consent is endorsed thereon. However, this Policy may be
assigned by the NAMED INSURED, without the Company's prior written consent
to a SERVICER or TRUSTEE, or another entity which has, directly or
indirectly, invested in or loaned money in connection with an INSURED
PROPERTY. The NAMED INSURED must provide the Company written notice of
such assignment within forty-five (45) days of the effective date of the
assignment.
All other terms, conditions and exclusions shall remain the same.
/S/
-----------------------------------------------
AUTHORIZED REPRESENTATIVE
or countersignature (in states where applicable)
<PAGE>
ENDORSEMENT NO. 3
THIS ENDORSEMENT EFFECTIVE 12:01 A.M.: 9/22/00
FORMS A PART OF POLICY #: 341 73 35
ISSUED TO: Wells Fargo Bank of Minnesota, N.A. as Trustee
for the registered holders of
Banc of America Commercial Mortgage Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2000-2
BY: American International Specialty Lines Insurance Company
AMENDATORY ENDORSEMENT
----------------------
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.
It is hereby agreed that Paragraphs J & K of SECTION IV. EXCLUSIONS are deleted
in their entirety and replaced with the following:
J. arising from the presence of asbestos or asbestos-containing materials
installed in or on any building or other structure. With the exception of
residential properties, this exclusion shall not apply to CLAIMS for
BODILY INJURY or government mandated CLEAN-UP COSTS on any INSURED
PROPERTY.
K. arising from the presence of lead-based paint applied to any real or
personal property on or under an INSURED PROPERTY. With the exception of
residential properties, this exclusion shall not apply to CLAIMS for
BODILY INJURY or government mandated CLEAN-UP COSTS on any INSURED
PROPERTY.
/S/
-------------------------------------------
AUTHORIZED REPRESENTATIVE
or countersignature (where required by law)
<PAGE>
AMERICAN INTERNATIONAL SPECIALTY LINES INSURANCE COMPANY
SECURED CREDITOR IMPAIRED PROPERTY POLICY
THIS POLICY HAS CERTAIN PROVISIONS AND REQUIREMENTS UNIQUE TO IT AND MAY BE
DIFFERENT FROM OTHER POLICIES THE INSURED MAY HAVE PURCHASED. PLEASE READ THE
ENTIRE POLICY CAREFULLY TO DETERMINE THE INSURED'S RIGHTS AND DUTIES, AND WHAT
IS AND IS NOT COVERED. VARIOUS PROVISIONS THROUGHOUT THIS POLICY RESTRICT OR
EXCLUDE COVERAGE.
COVERAGE IS AFFORDED ONLY FOR THOSE INSURED PROPERTIES SCHEDULED ON THE
POLICY.
DEFINED TERMS APPEAR IN BOLD FACE TYPE.
In consideration of the payment of the premium, in reliance upon the statements
in the Declarations and Secured Creditor Impaired Property Application
incorporated by reference and made a part hereof, and pursuant to all of the
terms of this Policy, the Company agrees with the INSURED as follows:
I. INSURING AGREEMENT
A. COVERAGE A - DEFAULT AND POLLUTION CONDITIONS
The Company will indemnify the INSURED for LOSS, if during the POLICY
PERIOD and prior to FORECLOSURE, there is a DEFAULT by a BORROWER on a
COMMERCIAL REAL ESTATE LOAN secured by an INSURED PROPERTY, LEASEHOLD or FIXED
ASSETS, and there are POLLUTION CONDITIONS on, under or emanating from the same
INSURED PROPERTY prior to or while the COMMERCIAL REAL ESTATE LOAN is in
DEFAULT.
B. COVERAGE B - THIRD-PARTY CLAIMS
The Company agrees to pay LOSS on behalf of the INSURED that the Insured
becomes legally obligated to pay as a result of CLAIMS first made against the
INSURED and reported to the Company, in writing, during the POLICY PERIOD, for
BODILY INJURY, PROPERTY DAMAGE or CLEAN-UP COSTS resulting from POLLUTION
CONDITIONS on, under or emanating from an INSURED PROPERTY.
C. COVERAGE C - CLEAN-UP OF POLLUTION CONDITIONS
The Company agrees to pay LOSS on behalf of the INSURED, after
FORECLOSURE, if CLEAN-UP COSTS are sustained because there are POLLUTION
CONDITIONS on, under or emanating from the INSURED PROPERTY during the POLICY
PERIOD provided that where required, such POLLUTION CONDITIONS have been
reported by the INSURED to the appropriate governmental agency in compliance
with applicable ENVIRONMENTAL LAWS, in effect as of the date of discovery.
D. LEGAL EXPENSE AND DEFENSE - COVERAGE B
The Company shall have the right and duty to investigate and defend any
CLAIM described in Coverage B. The Company's duty to defend or continue
defending any such CLAIM, and to pay any LOSS, shall cease once the applicable
limit of coverage, as described in Section V. LIMITS OF COVERAGE; DEDUCTIBLE has
been exhausted. Investigation and defense costs, charges and expenses are
included in LOSS, reduce the applicable limit of liability, and are included
within the Deductible amount shown in Item 4 of the Declarations.
E. INDEPENDENT COUNSEL - COVERAGE B
If the INSURED is entitled by law to select independent counsel to defend
the INSURED at the Company's expense, the attorney fees and all other litigation
expenses the Company must pay to that counsel are limited to the 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 competency,
including experience in defending CLAIMS or suits similar to the one pending
against the INSURED and to require such counsel to have errors and omissions
insurance coverage. As respects to such counsel, the INSURED agrees that counsel
will timely respond to the Company's request for information regarding the
CLAIM.
Furthermore, the INSURED may at any time, by its signed consent, freely
and fully waive its rights to select independent counsel.
II. NOTICE REQUIREMENTS AND CLAIM PROVISIONS
It is a condition precedent to any rights afforded under this Policy that
the INSURED provide the Company with notice of DEFAULT and POLLUTION CONDITIONS,
or LOSS as follows:
A. The INSURED shall give written notice to the Company, as soon as
possible but not later than forty-five (45) days after the INSURED first learns
of the DEFAULT and POLLUTION CONDITIONS, or LOSS to:
Manager, Pollution Insurance Products Unit
AIG Technical Services, Inc.
Environmental Claims Department
80 Pine Street, Sixth Floor
New York, New York 10005
and
Division Attorney - Pollution Legal Liability
American International Specialty Lines Insurance Company
175 Water Street, Twelfth Floor
New York, New York 10038
or other address(es) as substituted by the Company in writing.
B. The notice shall include, at a minimum, information sufficient to
identify the INSURED, the INSURED PROPERTY, the names of the persons with
knowledge regarding the time, place, cause, nature of and other circumstances of
the DEFAULT and POLLUTION CONDITIONS, or LOSS.
C. The notice may be provided only by the Insured and may not be
delegated to third parties. It is not a defense to this condition precedent that
the Company learned of the DEFAULT and POLLUTION CONDITIONS, or LOSS through any
independent means.
III. DUTIES OF THE INSURED IN THE EVENT OF LOSS
A. The INSURED shall furnish the following to the Company as soon as
available and practicable after the INSURED first learns of the DEFAULT and
POLLUTION CONDITIONS, or LOSS:
1. all correspondence between the INSURED and any claimant;
2. all demands, summons, notices or other processes or papers
filed with a court of law, administrative agency or
investigative body;
3. all technical reports, laboratory data, field notes or any
other documents generated by persons hired by the INSURED to
investigate or remediate POLLUTION CONDITIONS;
4. all expert reports, investigations and data collected by
experts retained by the INSURED, whether or not the INSURED
intends to use the material for any purpose;
5. all other information developed or discovered by the Insured
concerning the DEFAULT and POLLUTION CONDITIONS, or LOSS.
B. No INSURED shall voluntarily enter into any settlement, make any
payment, assume any obligation, or incur any costs, charges or expenses in the
defense or investigation of a CLAIM without the Company's consent, which shall
not be unreasonably withheld or delayed, except at the INSURED'S own cost, or in
response to an emergency or pursuant to ENVIRONMENTAL LAWS which require
immediate remediation of POLLUTION CONDITIONS.
C. If the INSURED refuses to consent to any settlement within the
limits of coverage of this Policy recommended by the Company and acceptable to
the claimant, the Company's duty to defend the INSURED shall then cease and the
INSURED shall thereafter negotiate or defend such CLAIM independently of the
Company and the Company's liability shall not exceed the amount, less the
Deductible or any outstanding Deductible balance, for which the CLAIM could have
been settled if such recommendation was consented to.
D. The INSURED must cooperate with the Company and offer all reasonable
assistance in the investigation and defense of CLAIMS. The Company may require
that the INSURED submit to examination under oath, and attend hearings,
depositions and trials. In the course of investigation or defense, the Company
may require written statements or the INSURED'S attendance at meetings with the
Company. The INSURED must reasonably assist the Company in effecting settlement,
securing and providing evidence and obtaining the attendance of witnesses, all
without charge to the Company.
IV. EXCLUSIONS
This Policy does not apply to LOSS:
A. due to or for any punitive, exemplary or multiplied portion of
multiple damages or any civil or administrative fines, penalties or assessments,
except where such damages, fines, penalties or assessments are insurable by
applicable law; or any criminal fines, penalties or assessments.
B. arising as a result of liability of others assumed by the INSURED
under any contract or agreement, unless the liability of the INSURED would have
attached in the absence of such contract or agreement.
C. arising out of any obligation of the INSURED under any worker's
compensation, unemployment compensation or disability benefits law or similar
law.
D. arising from BODILY INJURY to an employee of the INSURED or its
parent, subsidiary or affiliate arising out of and in the course of employment
by the INSURED or its parent, subsidiary or affiliate. This exclusion applies
(1) whether the INSURED may be liable as an employer or in any other capacity;
and (2) to any obligation to share damages with or repay third parties that must
pay damages because of this injury.
E. arising from POLLUTION CONDITIONS resulting from or attributable to
the INSURED'S intentional, knowing, willful or deliberate noncompliance with any
statute, regulation, ordinance, administrative complaint, notice of violation,
notice letter, executive order, or instruction of any governmental agency or
body.
F. arising from POLLUTION CONDITIONS resulting from an intentionally
illegal act or omission of the INSURED, if the INSURED knew that the POLLUTION
CONDITIONS would result.
G. arising from POLLUTION CONDITIONS existing prior to the effective
date of coverage for an INSURED PROPERTY, and not otherwise specifically
excluded by endorsement to this Policy, if as of such date the INSURED knew that
such POLLUTION CONDITIONS could give rise to a LOSS under this Policy and failed
to disclose such POLLUTION CONDITIONS to the Company, or the Company did not
otherwise learn of such POLLUTION CONDITIONS from engineering reports,
environmental spreadsheets, the Secured Creditor Impaired Property
Questionnaire, or from other technical reports the Company obtained
independently.
H. by one INSURED against any other person or entity who is also an
INSURED under this Policy.
I. for costs, charges or expenses incurred by the INSURED for goods
supplied or services performed by the staff or salaried employees of the
INSURED, or its parent, subsidiary or affiliate, unless such costs, charges or
expenses are incurred with the prior written approval of the Company in its sole
discretion.
J. arising from the presence of asbestos or any asbestos-containing
materials installed in or on any building or other structure.
K. arising from the presence of lead-based paint applied to any real or
personal property on or under an INSURED PROPERTY.
V. LIMITS OF COVERAGE; DEDUCTIBLE
Regardless of the number of POLLUTION CONDITIONS, INSUREDS, CLAIMS, LOSSES
or claimants under this Policy, the following limits of coverage apply:
A. POLICY AGGREGATE LIMIT
The Company's total liability for all LOSS covered under this Policy shall
not exceed the "Total all LOSSes" stated in Item 3 of the Declarations. The
purchase of an Extended Reporting Period pursuant to Section VII of this Policy
shall not serve to reinstate or increase the "Total all LOSSes".
B. EACH LOSS LIMIT
Subject to and included in the limit of liability described in Paragraph A
above, the most the Company will pay in excess of the deductible amount shown in
Item 4 of the Declarations for each LOSS under Coverage A and B, and for all
CLEAN-UP COSTS arising from the same, continuous or related POLLUTION CONDITIONS
under Coverage C, is the "Each LOSS" limit of liability shown in Item 3 of the
Declarations.
C. RELATED POLLUTION CONDITIONS
1. Solely with respect to Coverage B, if a CLAIM for BODILY
INJURY, PROPERTY DAMAGE or CLEAN-UP COSTS is first made
against the INSURED and reported to the Company during this
POLICY PERIOD, all CLAIMS for BODILY INJURY, PROPERTY Damage
or CLEAN-UP COSTS arising from the same, continuous or related
POLLUTION CONDITIONS, which are made against the INSURED and
reported under a subsequent Secured Creditor Impaired Property
Policy issued by the Company or its affiliate, shall be deemed
to have been first made and reported under this Policy and
shall be subject to the Limits of Liability under this Policy.
Coverage under this Policy for such CLAIMS made against the INSURED and
reported under a subsequent Secured Creditor Impaired Property Policy as
described in Paragraph 1 above, shall not apply unless at the time such Claims
are first made and reported the INSURED has maintained with the Company or its
affiliate Secured Creditor Impaired Property coverage substantially the same as
this coverage on a successive, uninterrupted basis since the first such CLAIM
was made against the INSURED and reported to the Company.
2. All LOSS arising from the same, continuous, or related
POLLUTION CONDITIONS shall be subject to one "Each LOSS" limit
of liability. In the event coverage is provided under more
than one of Coverages A, B and C, only one "Each LOSS" limit
stated in Item 3 of the Declarations shall apply.
D. DEDUCTIBLE
Subject to Section V. LIMITS OF COVERAGE; DEDUCTIBLE, Paragraphs A and B
above, this Policy is to pay all LOSS in excess of the "Each LOSS" Deductible
amount stated in Item 4 of the Declarations. The Deductible amount includes
investigation and defense costs, charges and expenses, and applies to all LOSS
arising from the same, related or continuous POLLUTION CONDITIONS.
The INSURED shall promptly reimburse the Company for advancing any payment
of LOSS falling within the Deductible.
VI. DEFINITIONS
A. BODILY INJURY means physical injury, sickness, disease, mental
anguish or emotional distress sustained by any person, including death resulting
therefrom.
B. BORROWER means any obligor on a COMMERCIAL REAL ESTATE LOAN,
including without limitation, any guarantor therefor, the holder of any
ownership interest in an INSURED PROPERTY and any other person, entity or
organization controlled by or under common control of the obligor.
C. CLAIM means a written demand received by the INSURED seeking a
remedy and alleging liability or responsibility on the part of the INSURED for
LOSS under Coverage B.
D. CLEAN-UP COSTS means expenses, including reasonable and necessary
legal expenses, incurred with the Company's written consent, incurred in the
investigation (including remedial studies and design), removal, remediation
(including the associated monitoring), or disposal of soil, surfacewater,
groundwater or other contamination:
(1) to the extent required by ENVIRONMENTAL LAWS, or specifically
mandated by court order, the government or any political
subdivision of the United States of America or any state
thereof, or Canada; or
(2) which have been actually incurred by the government or any
political subdivision of the United States of America or any
state thereof, or Canada or any province thereof, or by
third-parties.
E. COMMERCIAL REAL ESTATE LOAN means an obligation evidenced by loan
documents which is secured by the INSURED PROPERTY, LEASEHOLD or FIXED ASSETS as
scheduled in Item 5 of the Declarations, and in which loan documents the INSURED
relies upon such INSURED PROPERTY, LEASEHOLD or FIXED ASSETS as security for the
loan and obtains a perfected mortgage or other security interest.
F. DEFAULT means the failure of a BORROWER to make any part of a
scheduled, periodic or final payment by the due date under the COMMERCIAL REAL
ESTATE LOAN or the BORROWER'S failure to comply with items designated as the
causes or events of default as provided by the terms of the COMMERCIAL REAL
ESTATE LOAN. The DEFAULT shall be deemed to occur on the day after such due date
under the COMMERCIAL REAL ESTATE LOAN provided that the DEFAULT was not cured
within the applicable grace period as provided by the terms of the COMMERCIAL
REAL ESTATE LOAN. For purposes of this Policy, the mere presence of a POLLUTION
CONDITION shall not be deemed a cause or event of default.
G. ENVIRONMENTAL LAWS means any federal, state or local laws (including
but not limited to statutes, regulations, rules, ordinances, guidance documents,
and governmental or administrative orders and directives) which are applicable
to POLLUTION CONDITIONS.
H. FIXED ASSETS means fixtures, plant and equipment at or on an INSURED
PROPERTY owned by the BORROWER, which are depreciated over their useful life.
I. FORECLOSURE means taking title to an interest in the INSURED
PROPERTY, LEASEHOLD or FIXED ASSETS through the enforcement of a lien, mortgage,
deed of trust or other secured interest under a COMMERCIAL REAL ESTATE LOAN,
whether through legal proceedings or otherwise.
J. INSURED means the NAMED INSURED, TRUSTEE or SERVICER, and any
director, officer, partner or employee thereof while acting within the scope of
his or her duties as such, and any such additional INSURED added by endorsement
to this Policy.
K. INSURED PROPERTY means the real property, including any FIXED ASSETS
or LEASEHOLD, scheduled in Item 5. of the Declarations on the date of the LOSS.
L. LEASEHOLD means the BORROWER'S right to possession of leased INSURED
PROPERTY pursuant to a written lease agreement.
M. LOSS means:
1. With respect to Coverage A, the OUTSTANDING BALANCE on the
date of DEFAULT, including principal and accrued interest from
the date of DEFAULT until the date that the OUTSTANDING
BALANCE is paid, plus interest on any advances of scheduled
monthly payments made by the INSURED from the date of DEFAULT,
plus advances and interest on advances for PROPERTY PROTECTION
actually paid by the INSURED pursuant to the COMMERCIAL REAL
ESTATE LOAN or, if applicable, a POOLING AND SERVICING
AGREEMENT. Such advances and interest on advances made for
PROPERTY PROTECTION are limited to ten (10) percent of the
OUTSTANDING BALANCE on the date of DEFAULT.
2. With respect to Coverage B, (a) monetary awards or settlements
of compensatory damages for BODILY INJURY, PROPERTY DAMAGE or
CLEAN-UP COSTS; (b) CLEAN-UP COSTS; and (c) costs, charges and
expenses incurred in the defense, investigation and adjustment
of CLAIMS.
3. With respect to Coverage C, CLEAN-UP COSTS.
N. NAMED INSURED means the party, person or entity named in Item 1 of
the Declarations.
O. NATURAL RESOURCE DAMAGE means physical injury to or destruction of,
including the resulting loss of value of, land, fish, wildlife, biota, air,
water, groundwater, drinking water supplies, and other such resources belonging
to, managed by, held in trust by, appertaining to, or otherwise controlled by
the United States (including the resources of the fishery conservation zone
established by the Magnuson-Stevens Fishery Conservation and Management Act (16
U.S.C. 1801 et seq.)), any state or local government, any foreign government,
any Indian tribe, or if such resources are subject to a trust restriction on
alienation, any member of an Indian tribe.
P. OUTSTANDING BALANCE means the principal amount of outstanding
indebtedness owed to the INSURED as of the date of Default calculated pursuant
to the terms and conditions of the COMMERCIAL REAL ESTATE LOAN plus interest as
described in the definition of LOSS. OUTSTANDING BALANCE shall not include
penalties or other fees arising out of a DEFAULT.
Q. POLICY PERIOD means the period set forth in Item 2 of the
Declarations or any shorter period arising as a result of:
1. cancellation of this Policy; or
2. the deletion by the Company of a particular INSURED Property
at the NAMED INSURED'S written request, but solely with
respect to that INSURED PROPERTY.
R. POLLUTION CONDITIONS means:
1. with respect to Coverages A and C, the discharge, dispersal,
release or escape of any solid, liquid, gaseous or thermal
irritant or contaminant, including smoke, vapors, soot, fumes,
acids, alkalis, toxic chemicals, and waste materials into or
upon land, or any structure on land, the atmosphere or any
watercourse or body of water, including groundwater, in
concentrations or amounts exceeding maximum levels allowed by
applicable ENVIRONMENTAL LAWS, or by governmental or court
order or directive, acting under the authority granted by
ENVIRONMENTAL LAWS, provided such conditions are not naturally
present in the environment in the concentration or amounts
discovered.
2. with respect to Coverage B, the discharge, dispersal, release,
or escape of any solid, liquid, gaseous or thermal irritant or
contaminant, including smoke, vapors, soot, fumes, acids,
alkalis, toxic chemicals, and waste materials into or upon
land, or any structure on land, the atmosphere or any
watercourse or body of water, including groundwater, provided
such conditions are not naturally present in the environment
in the concentration or amounts discovered.
S. POOLING AND SERVICING AGREEMENT means the agreement governing the
servicing of the COMMERCIAL REAL ESTATE LOAN(S).
T. PROPERTY DAMAGE means:
1. Physical injury to or destruction of tangible property of
parties other than the INSURED, including the resulting loss
of use or diminution in value thereof;
2. LOSS of use, but not diminution in value, of tangible property
of parties other than the INSURED, which has not been
physically injured or destroyed;
3. NATURAL RESOURCE DAMAGE.
U. PROPERTY PROTECTION means reasonable expenses necessary to protect
the INSURED PROPERTY.
V. SERVICER means the party(ies) to the POOLING AND SERVICING AGREEMENT
responsible for servicing the COMMERCIAL REAL ESTATE LOAN(S).
W. TRUSTEE means the trustee under the POOLING AND SERVICING AGREEMENT.
VII. EXTENDED REPORTING PERIOD - COVERAGE B
Solely with respect to Coverage B, the INSURED shall be entitled to an
Automatic Extended Reporting Period, and (with certain exceptions as described
in paragraph B. of this Section) entitled to purchase an Optional Extended
Reporting Period Endorsement upon termination of coverage as defined in
Paragraph B. of this Section. Neither the Automatic nor the Optional Extended
Reporting Period shall reinstate or increase the Policy Aggregate Limit of this
Policy.
A. AUTOMATIC EXTENDED REPORTING PERIOD
Provided the INSURED has not purchased any other insurance to replace
Coverage B which applies to a CLAIM otherwise covered under Coverage B, the
NAMED INSURED shall have a period of forty-five (45) days following the
effective date of termination of coverage in which to provide written notice to
the Company of CLAIMS first made and reported within the Automatic Extended
Reporting Period. A CLAIM first made and reported within the Automatic Extended
Reporting Period will be deemed made on the last day of the POLICY PERIOD,
provided the CLAIM arises from POLLUTION CONDITIONS that commenced before the
end of the POLICY PERIOD and is otherwise covered by this Policy. The Automatic
Extended Reporting Period shall not apply if the Optional Extended Reporting
Period becomes effective.
B. OPTIONAL EXTENDED REPORTING PERIOD
The NAMED INSURED shall be entitled to purchase an Optional Extended
Reporting Period upon termination of coverage, as defined in Paragraph 3. below,
except in the event of nonpayment of premium.
1. A Claim first made and reported within the Optional Extended
Reporting Period, if purchased in accordance with the
provisions contained in Paragraph 2 below, will be deemed to
have been made on the last day of the POLICY PERIOD, provided
that the CLAIM arises from POLLUTION CONDITIONS that commenced
before the end of the POLICY PERIOD and is otherwise covered
by this Policy.
2. The Company shall issue an endorsement providing an Optional
Extended Reporting Period of up to thirty-six (36) months from
termination of coverage under this Policy for any INSURED
PROPERTY provided that the NAMED INSURED:
a. makes a written request for such endorsement which
the Company receives within forty-five (45) days
after termination of coverage as defined herein; and
b. pays the additional premium when due. If that additional
premium is paid when due, the Optional Extended
Reporting Period may not be canceled, provided that all
other terms and conditions of the Policy are met.
3. Termination of coverage occurs at the time of:
a. cancellation or nonrenewal of this Policy by the
NAMED INSURED or by the Company;
b. the Company's deletion from Item 5 of the Declarations
of this Policy of a location which was an INSURED
PROPERTY, at the INSURED'S written request, but solely
with respect to that INSURED PROPERTY.
4. The Optional Extended Reporting Period is available to the
NAMED INSURED for not more than 200% of the premium the
Company has charged for the INSURED PROPERTY for which the
Extended Reporting Period is purchased.
VIII. CONDITIONS
A. ASSIGNMENT - This Policy may not be assigned without the prior
written consent of the Company which consent shall not be unreasonably withheld.
Assignment of interest under this Policy shall not bind the Company until its
consent is endorsed thereon. However, this Policy may be assigned by the NAMED
INSURED without the Company's prior written consent to the SERVICER or TRUSTEE,
or another entity which has, directly or indirectly, invested in or loaned money
in connection with an INSURED PROPERTY. The NAMED INSURED must provide the
Company written notice of such assignment within forty-five (45) days of the
effective date of the assignment.
B. SUBROGATION
1. To the extent of any payment under this Policy, the Company
shall be subrogated to all the INSURED'S rights of recovery
therefor against any person or organization, with the
exception of the BORROWER; provided that if the Company
indemnifies the INSURED for the OUTSTANDING BALANCE under
Coverage A, the Company reserves its right of FORECLOSURE
against the BORROWER.
2. The INSURED shall execute and deliver instruments and papers
and do whatever else is reasonably necessary to secure such
rights including without limitation, assignment of the
INSURED'S rights against any person or organization, with the
exception of the BORROWER, who caused POLLUTION CONDITIONS on
account of which the Company made any payment under this
Policy.
3. Any recovery as a result of subrogation proceedings shall
accrue first to the INSURED to the extent of any LOSS in
excess of the limit of coverage, then to the Company to the
extent of its payment under the policy, and then to the
INSURED to the extent of its Deductible. Expenses incurred in
such subrogation proceedings shall be apportioned among the
interested parties in the recovery in the proportion that each
interested party's share in the recovery bears to the total
recovery. Any recoveries received by the Company via
subrogation net of expenses incurred in making such recovery
shall serve to reinstate the "Total all LOSSes" limit of
liability stated in Item 3 of the Declarations, but only to
the extent of such net recovery.
4. The INSURED shall do nothing to prejudice the Company's rights
of Subrogation.
C. CHANGES - Notice to any agent or knowledge possessed by any agent or
by any other person shall not effect a waiver or a change in any part of this
Policy or estop the Company from asserting any right under the terms of this
Policy; nor shall the terms of this Policy be waived or changed, except by
endorsement issued to form a part of this Policy.
D. SOLE AGENT - The NAMED INSURED first listed in Item 1 of the
Declarations shall act on behalf of all other INSUREDS, if any, for the payment
or return of premium, receipt and acceptance of any endorsement issued to form a
part of this Policy, and giving and receiving notice of cancellation or
nonrenewal and the exercise of the rights provided in the EXTENDED REPORTING
PERIOD clause.
E. CANCELLATION - This Policy may be canceled by the INSURED by
surrender thereof to the Company or any of its authorized agents or by mailing
to the Company written notice stating when thereafter the cancellation shall be
effective.
This Policy may be canceled by the Company only for nonpayment of premium
by mailing to the NAMED INSURED at the address shown in the Policy, written
notice stating when not less than ten (10) days thereafter cancellation shall be
effective. Proof of mailing of notice described in this Condition E. 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. If the NAMED INSURED cancels, earned premium shall be computed in
accordance with the customary short rate table. If the Company cancels, earned
premium shall be computed pro rata. Premium adjustment may be either at the time
cancellation is effected or as soon as practicable after cancellation becomes
effective, but payment or tender of unearned premium is not a condition of
cancellation.
F. TERMINATION OF COVERAGE - In the event of the INSURED'S sale of a
COMMERCIAL REAL ESTATE LOAN, coverage under Coverages A and C will automatically
terminate as of the effective date of such sale for any INSURED PROPERTY
included in such sale. Coverage B, however, will continue for such INSURED
PROPERTY for the remainder of the POLICY PERIOD and EXTENDED REPORTING PERIOD,
if applicable.
G. CONCEALMENT OR FRAUD - This entire Policy shall be void if, whether
before or after LOSS is incurred or a CLAIM is first made, the Insured has
willfully concealed or misrepresented any fact or circumstance in the Secured
Creditor Impaired Property Application material to the granting of coverage
under this Policy. In addition, coverage for any individual INSURED PROPERTY
shall be void if, whether before or after LOSS is incurred or a CLAIM is first
made, the INSURED has willfully concealed or misrepresented any fact or
circumstance material to the granting of coverage for the INSURED PROPERTY under
this Policy.
H. OTHER INSURANCE
1. Coverage A.
This insurance is primary. Our obligations are not affected by any
other insurance that may be primary.
2. Coverages B and C.
(a) This insurance is primary. Our obligations are not
affected unless any other insurance applicable to LOSS
covered by this Policy is also primary. Then, we will
share with all other insurance by the method described
in paragraphs (b) and (c) below.
(b) If other primary insurance permits contribution by equal
shares, we will follow this method also. Under this
approach each insurer contributes equal amounts until it
has paid its applicable limit of insurance or none of
the loss remains, whichever comes first.
(c) If any other insurance does not permit contribution by
equal shares, we will contribute by limits. Under this
method, each insurer's share is based on the ratio of
its applicable limit of insurance to the total
applicable limits of insurance of all primary insurers.
I. RIGHT OF ACCESS AND INSPECTION - Any of the Company's authorized
representatives shall have the right and opportunity but not the obligation when
the Company so desires to interview persons employed by the INSURED and to
inspect at any reasonable time, during the POLICY PERIOD or thereafter, an
Insured Property for which the INSURED holds title, and applicable records for
COMMERCIAL REAL ESTATE LOANS. Neither the Company nor its representatives shall
assume any responsibility or duty to the INSURED or to any other party, person
or entity, by reason of such right of inspection. Neither the Company's right to
make inspections, sample and monitor nor the actual undertaking thereof nor any
report thereon shall constitute an undertaking on behalf of the INSURED or
others, to determine or warrant that property or operations are safe, healthful
or conform to acceptable engineering practices or are in compliance with any
law, rule or regulation. The INSURED agrees to provide appropriate personnel to
assist the Company's representatives during any inspection.
J. REPRESENTATIONS - By acceptance of this Policy, the first NAMED
INSURED agrees that the statements in the Declarations and Secured Creditor
Impaired Property Application are its agreements and representations, that this
Policy is issued in reliance upon the truth of such representations and that
this Policy embodies all agreements existing between any INSURED and the Company
or any of its agents relating to this insurance.
K. ACTION AGAINST COMPANY - No person or organization has a right under
this Policy:
1. to join the Company as a party or otherwise bring the
Company into a suit asking for damages from an INSURED; or
2. to sue the Company on this Policy unless all of its terms
have been fully complied with.
A person or organization may sue the Company to recover on an agreed
settlement or on a final judgment against an INSURED obtained after an actual
trial; but the Company will not be liable for damages that are not payable under
the terms of this Policy or that are in excess of the applicable limit of
liability. An agreed settlement means a settlement and release of liability
signed by the Company, the INSURED and the claimant or the claimant's legal
representative.
L. BANKRUPTCY - Bankruptcy or insolvency of the INSURED or of the
INSURED'S estate shall not relieve the Company of any of its obligations
hereunder.
M. ARBITRATION - It is hereby understood and agreed that all disputes
or differences which may arise under or in connection with this Policy, whether
arising before or after termination of this Policy, including any determination
of the amount of LOSS, shall be submitted to the American Arbitration
Association under and in accordance with its then prevailing commercial
arbitration rules. The arbitrators shall be chosen in the manner and within the
time frames provided by such rules. If permitted under such rules, the
arbitrators shall be three disinterested individuals having knowledge of the
legal, corporate management or insurance issues relevant to the matters in
dispute.
Any party may commence such arbitration proceeding and the arbitration
shall be conducted in New York, New York. The arbitrators shall give due
consideration to the general principles of New York law in the construction and
interpretation of the provisions of this Policy; provided, however, that the
terms, conditions, provisions and exclusions of this Policy are to be construed
in an evenhanded fashion as between the parties. Where the language of this
Policy is alleged to be ambiguous or otherwise unclear, the issue shall be
resolved in the manner most consistent with the relevant terms, conditions,
provisions or exclusions of the Policy (without regard to the authorship of the
language, the doctrine of reasonable expectation of the parties and without any
presumption or arbitrary interpretation or construction in favor of either party
or parties, and in accordance with the intent of the parties.)
The written decision of the arbitrators shall set forth its reasoning,
shall be provided simultaneously to both parties and shall be binding on them.
The arbitrators' award shall not include attorney fees or other costs. Judgment
on the award may be entered in any court of competent jurisdiction. Each party
shall bear equally the expenses of the arbitration.
N. SERVICE OF SUIT - Subject to Paragraph M. above, it is agreed that
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.
Nothing in this condition constitutes or should be understood to constitute a
waiver of the Company's rights to commence an action in any court of competent
jurisdiction in the United States, to remove an action to a United Stated
District Court, or to seek a transfer of a case to another court as permitted by
the laws of the United States or of any state in the United States. It is
further agreed that service of process in such suit may be made upon General
Counsel, Legal Department, American International Specialty Lines Insurance
Company, 70 Pine Street, New York, New York 10270, or his or her representative,
and that in any suit instituted against the Company upon this contract, the
Company will abide by the final decision of such court or of any appellate court
in the event of any appeal.
Further, pursuant to any statute of any state, territory, or district of
the United States which makes provision therefore, the Company hereby designates
the Superintendent, Commissioner, Director of Insurance, or other officer
specified for that purpose in the statute, or his or her successor or successors
in office 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 contract of insurance,
and hereby designates the above named General Counsel as the person to whom the
said officer authorized to mail such process or a true copy thereof.
O. SOLD LOANS - in the event a COMMERCIAL REAL ESTATE LOAN(S) is sold
by the INSURED, the Company agrees to offer coverage to the new owner of the
COMMERCIAL REAL ESTATE LOAN(S) identical to coverage provided the INSURED under
this Policy. The per INSURED PROPERTY premium to be charged to the new owner of
the COMMERCIAL REAL ESTATE LOAN(S) will be equal to the pro rata premium
applying to an INSURED PROPERTY as of the date of sale plus not more than $100
per INSURED PROPERTY. Additional premium may be charged to the new owner of the
COMMERCIAL REAL ESTATE LOAN for negotiated differences in terms and conditions,
including but not limited to, POLICY PERIOD, limits of liability and deductible.
P. LENDER LIABILITY - The existence of any legal protection for the
INSURED against liability of any kind whatsoever in connection with POLLUTION
CONDITIONS, including but not limited to the secured creditor exemption in
Section 9601(2) of the Comprehensive Environmental Response, Compensation and
Liability Act, 42 U.S.C. Sec. 9601 et seq., shall in no way affect the rights of
the INSURED under this Policy. Any failure of the INSURED to qualify for such
protection shall not in and of itself trigger Exclusion IV.E or in any other way
affect the rights of the INSURED under this Policy.
IN WITNESS WHEREOF, the Company has caused this Policy to be signed by its
president and secretary and signed on the Declarations page by its duly
authorized representative or countersigned in states where applicable.
/S/ /S/
------------------------------------ ---------------------------------------
SECRETARY PRESIDENT
<PAGE>
ENDORSEMENT NO. 3
THIS ENDORSEMENT EFFECTIVE 12:01 A.M.: 10/29/99
FORMS A PART OF POLICY NO: 476 17 75
ISSUED TO: Bank of America - Commercial Mortgage Lending
BY: American International Specialty Lines Insurance Company
AMENDATORY ENDORSEMENT
----------------------
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.
It is hereby agreed that Declarations Form 74067 (5/99), Item 1, NAMED INSURED
AND ADDRESS, Item 2, POLICY PERIOD, Item 3, LIMITS OF LIABILITY, are amended as
follows:
ITEM 1: NAMED INSURED:
Wells Fargo Bank of Minnesota, N.A. as Trustee
for the registered holders of
Banc of America Commercial Mortgage Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2000-2
ADDRESS: 11000 Broken Land Parkway
Columbia, MD 21044-3562
Attn: Corporate Trust Services (CMBS), Banc of
America Commercial Mortgage Inc., Series 2000-2
ITEM 2: POLICY PERIOD: 10/29/99 to 1/29/15
ITEM 3: LIMITS OF LIABILITY:
Each LOSS $11,250,000
Total all LOSSes $11,250,000
All other terms, conditions and exclusions remain the same.
/S/
-------------------------------------------
AUTHORIZED REPRESENTATIVE
or countersignature (where required by law)
<PAGE>
ENDORSEMENT NO. 3
THIS ENDORSEMENT EFFECTIVE 12:01 A.M.: 10/29/99
FORMS A PART OF POLICY NO: 476 17 77
ISSUED TO: Bank of America - Commercial Mortgage Lending
BY: American International Specialty Lines Insurance Company
AMENDATORY ENDORSEMENT
----------------------
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.
It is hereby agreed that Declarations Form 74067 (5/99), Item 1, NAMED INSURED
AND ADDRESS, Item 2, POLICY PERIOD, Item 3, LIMITS OF LIABILITY, are amended as
follows:
ITEM 1: NAMED INSURED:
Wells Fargo Bank of Minnesota, N.A. as Trustee
for the registered holders of
Banc of America Commercial Mortgage Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2000-2
ADDRESS: 11000 Broken Land Parkway
Columbia, MD 21044-3562
Attn: Corporate Trust Services (CMBS), Banc of
America Commercial Mortgage Inc., Series 2000-2
ITEM 2: POLICY PERIOD: 10/29/99 to 1/29/15
ITEM 3: LIMITS OF LIABILITY:
Each LOSS $8,781,250
Total all LOSSes $8,781,250
All other terms, conditions and exclusions remain the same.
/S/
-------------------------------------------
AUTHORIZED REPRESENTATIVE
or countersignature (where required by law)
<PAGE>
ENDORSEMENT NO. 3
THIS ENDORSEMENT EFFECTIVE 12:01 A.M.: 10/29/99
FORMS A PART OF POLICY NO: 476 17 76
ISSUED TO: Bank of America - Commercial Mortgage Lending
BY: American International Specialty Lines Insurance Company
AMENDATORY ENDORSEMENT
----------------------
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.
It is hereby agreed that Declarations Form 74067 (5/99), Item 1, NAMED INSURED
AND ADDRESS, Item 2, POLICY PERIOD, Item 3, LIMITS OF LIABILITY, are amended as
follows:
ITEM 1: NAMED INSURED:
Wells Fargo Bank of Minnesota, N.A. as Trustee
for the registered holders of
Banc of America Commercial Mortgage Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2000-2
ADDRESS: 11000 Broken Land Parkway
Columbia, MD 21044-3562
Attn: Corporate Trust Services (CMBS), Banc of
America Commercial Mortgage Inc., Series 2000-2
ITEM 2: POLICY PERIOD: 10/29/99 to 1/29/15
ITEM 3: LIMITS OF LIABILITY:
Each LOSS $34,321,250
Total all LOSSes $34,321,250
All other terms, conditions and exclusions remain the same.
/S/
-------------------------------------------
AUTHORIZED REPRESENTATIVE
or countersignature (where required by law)
<PAGE>
ENDORSEMENT NO. 3
THIS ENDORSEMENT EFFECTIVE 12:01 A.M.: 10/29/99
FORMS A PART OF POLICY NO: 476 17 75
ISSUED TO: Bank of America - Commercial Mortgage Lending
BY: American International Specialty Lines Insurance Company
AMENDATORY ENDORSEMENT
----------------------
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.
It is hereby agreed that Declarations Form 74067 (5/99), Item 1, NAMED INSURED
AND ADDRESS, Item 2, POLICY PERIOD, Item 3, LIMITS OF LIABILITY, are amended as
follows:
ITEM 1: NAMED INSURED:
Wells Fargo Bank of Minnesota, N.A. as Trustee
for the registered holders of
Banc of America Commercial Mortgage Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2000-2
ADDRESS: 11000 Broken Land Parkway
Columbia, MD 21044-3562
Attn: Corporate Trust Services (CMBS), Banc of
America Commercial Mortgage Inc., Series 2000-2
ITEM 2: POLICY PERIOD: 10/29/99 to 1/29/15
ITEM 3: LIMITS OF LIABILITY:
Each LOSS $4,823,000
Total all LOSSes $4,823,000
All other terms, conditions and exclusions remain the same.
/S/
-------------------------------------------
AUTHORIZED REPRESENTATIVE
or countersignature (where required by law)
<PAGE>
ENDORSEMENT NO. 4
THIS ENDORSEMENT, EFFECTIVE 12:01 AM, 10/29/99
FORMS A PART OF POLICY NO.: 476 17 75
ISSUED TO: Wells Fargo Bank of Minnesota, N.A. as Trustee
for the registered holders of
Banc of America Commercial Mortgage Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2000-2
BY: American International Specialty Lines Insurance Company
SECURED CREDITOR IMPAIRED PROPERTY ENDORSEMENT
----------------------------------------------
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY
It is hereby agreed that the Policy is amended as follows:
1. SECTION II. NOTICE REQUIREMENTS AND CLAIM PROVISIONS, paragraph A. is
deleted in its entirety and replaced with the following:
A. The INSURED shall give written notice to the Company, as soon as
possible but not later than forty-five (45) days after the INSURED first
learns of the DEFAULT and POLLUTION CONDITIONS with respect to Coverage A,
a CLAIM with respect to Coverage B, or POLLUTION CONDITIONS with respect
to Coverage C to:
Manager, Pollution Insurance Products Unit
AIG Technical Services, Inc.
Environmental Claims Department
80 Pine Street, Sixth Floor
New York, New York 10005
and
Division Attorney - Pollution Legal Liability
Commerce and Industry Insurance Company
175 Water Street
New York, New York 10038
or other address(es) as substituted by the Company in writing.
2. SECTION III. DUTIES OF THE INSURED IN THE EVENT OF LOSS, paragraph A is
deleted in its entirety and replaced with the following:
A. The INSURED shall furnish the following to the Company as soon as
available and practicable after the INSURED first learns of the DEFAULT
and POLLUTION CONDITIONS with respect to Coverage A, a CLAIM with respect
to Coverage B, or POLLUTION CONDITIONS with respect to Coverage C:
1. all correspondence between the INSURED and any claimant;
2. all demands, summons, notices or other processes or papers
filed with a court of law, administrative agency or
investigative body;
3. all technical reports, laboratory data, field notes or any
other documents generated by persons hired by the INSURED to
investigate or remediate POLLUTION CONDITIONS;
4. all expert reports, investigations and data collected by
experts retained by the INSURED, whether or not the INSURED
intends to use the material for any purpose;
5. all other information developed or discovered by the INSURED
concerning the DEFAULT and POLLUTION CONDITIONS, or LOSS.
3. Section IV. EXCLUSIONS, paragraph G is deleted in its entirety and
replaced with the following:
G. arising from POLLUTION CONDITIONS existing prior to the effective
date of coverage for an INSURED PROPERTY if as of such date the INSURED
knew that such POLLUTION CONDITIONS could give rise to a LOSS under this
Policy and failed to disclose such POLLUTION CONDITIONS to the Company, or
the Company did not otherwise learn of such POLLUTION CONDITIONS from
engineering reports, environmental spreadsheets, the Secured Creditor
Impaired Property Questionnaire, or from other technical reports the
Company obtained independently.
4. Section VI. DEFINITIONS, paragraph D. CLEAN-UP COSTS, F. DEFAULT, and R.
POLLUTION CONDITIONS are deleted in their entirety and replaced with the
following, respectively:
D. CLEAN-UP COSTS means expenses, including reasonable and necessary
legal expenses incurred with the Company's written consent which consent
shall not be unreasonably withheld or delayed, incurred in the
investigation (including remedial studies and design), removal,
remediation (including the associated monitoring), or disposal of soil,
surfacewater, groundwater or other contamination:
(1) to the extent required by ENVIRONMENTAL LAWS, or by court
order or directive, the government or any political
subdivision of the United States of America or any state
thereof, or Canada; or
(2) which have been actually incurred by the government or any
political subdivision of the United States of America or any
state thereof, or Canada or any province thereof, or by
third-parties.
F. DEFAULT means the failure of a BORROWER to make any part of a
scheduled, periodic or final payment by the due date under the COMMERCIAL
REAL ESTATE LOAN or the BORROWER'S failure to comply with items designated
as the causes OR events of default as provided BY the terms of the
COMMERCIAL REAL ESTATE LOAN. The DEFAULT shall be deemed to occur on the
day after such due date under the COMMERCIAL REAL ESTATE LOAN provided
that the DEFAULT was not cured within the applicable grace period as
provided by the terms of the COMMERCIAL REAL ESTATE LOAN.
R. POLLUTION CONDITIONS means:
(1) with respect to Coverages A and C, the discharge, dispersal,
release or escape of any solid, liquid, gaseous or thermal irritant or
contaminant, including smoke, vapors, soot, fumes, acids, alkalis, toxic
chemicals, hazardous substances, and waste materials into or upon land, or
any structure on land, the atmosphere or any watercourse or body of water,
including groundwater, resulting in concentrations or amounts exceeding
maximum levels allowed by applicable ENVIRONMENTAL LAWS, or by
governmental or court order or directive, acting under the authority
granted by ENVIRONMENTAL LAWS, provided such conditions are not naturally
present in the environment in the concentration or amounts discovered.
(2) with respect to Coverage B, the discharge, dispersal, release,
or escape of any solid, liquid, gaseous or thermal irritant or
contaminant, including smoke, vapors, soot, fumes, acids, alkalis, toxic
chemicals, and waste materials into or upon land, or any structure on
land, the atmosphere or any watercourse or body of water, including
groundwater, provided such conditions are not naturally present in the
environment in the concentration or amounts discovered.
5. Section VIII. CONDITIONS, paragraph A. ASSIGNMENT is deleted in its
entirety and replaced with the following:
A. ASSIGNMENT - This Policy may not be assigned without the prior
written consent of the Company which consent shall not be unreasonably
withheld. Assignment of interest under this Policy shall not bind the
Company until its consent is endorsed thereon. However, this Policy may be
assigned by the NAMED INSURED, without the Company's prior written consent
to a SERVICER or TRUSTEE, or another entity which has, directly or
indirectly, invested in or loaned money in connection with an INSURED
PROPERTY. The NAMED INSURED must provide the Company written notice of
such assignment within forty-five (45) days of the effective date of the
assignment.
All other terms, conditions and exclusions shall remain the same.
/S/
------------------------------------------------
AUTHORIZED REPRESENTATIVE
or countersignature (in states where applicable)
<PAGE>
ENDORSEMENT NO. 5
THIS ENDORSEMENT EFFECTIVE 12:01 A.M.: 10/29/99
FORMS A PART OF POLICY #: 476 17 75
ISSUED TO: Wells Fargo Bank of Minnesota, N.A. as Trustee
for the registered holders of
Banc of America Commercial Mortgage Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2000-2
BY: American International Specialty Lines Insurance Company
AMENDATORY ENDORSEMENT
----------------------
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.
It is hereby agreed that Paragraphs J & K of SECTION IV. EXCLUSIONS are
deleted in their entirety and replaced with the following:
J. arising from the presence of asbestos or asbestos-containing materials
installed in or on any building or other structure. With the exception of
residential properties, this exclusion shall not apply to CLAIMS for
BODILY INJURY or government mandated CLEAN-UP COSTS on any INSURED
PROPERTY.
K. arising from the presence of lead-based paint applied to any real or
personal property on or under an INSURED PROPERTY. With the exception of
residential properties, this exclusion shall not apply to CLAIMS for
BODILY INJURY or government mandated CLEAN-UP COSTS on any INSURED
PROPERTY.
/S/
-------------------------------------------
AUTHORIZED REPRESENTATIVE
or countersignature (where required by law)
<PAGE>
ENDORSEMENT NO. 3
THIS ENDORSEMENT EFFECTIVE 12:01 A.M.: 10/29/99
FORMS A PART OF POLICY NO: 476 17 76
ISSUED TO: Bank of America-Commercial Mortgage Lending
BY: American International Specialty Lines Insurance Company
AMENDATORY ENDORSEMENT
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY
It is hereby agreed that Declarations Form 74067 (5/99), Item 1, NAMED
INSURED AND ADDRESS, Item 2, POLICY PERIOD, and Item 3, LIMITS OF LIABILITY, are
amended as follows:
ITEM 1: NAMED INSURED:
Wells Fargo Bank of Minnesota, N.A. as Trustee
for the registered holders of
Banc of America Commercial Mortgage Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2000-2
ADDRESS: 11000 Broken Land Parkway
Columbia, MD 21044-3562
ATTN: Corporate Trust Services (CMBS), Banc of America
Commercial Mortgage Inc., Series 2000-2
ITEM 2: POLICY PERIOD: 10/29/99 to 1/29/25
ITEM 3: LIMITS OF LIABILTY:
Each LOSS $14,710,000
Total all LOSSes $14,710,000
All other terms, conditions and exclusions remain the same.
/S/
-------------------------------------------
AUTHORIZED REPRESENTATIVE
or countersignature (where required by law)
<PAGE>
ENDORSEMENT NO. 4
THIS ENDORSEMENT, EFFECTIVE 12:01 A.M., 10/29/99
FORMS A PART OF POLICY NO.: 476 17 76
ISSUED TO: Wells Fargo Bank of Minnesota, N.A. as Trustee
for the registered holders of
Banc of America Commercial Mortgage Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2000-2
BY: American International Specialty Lines Insurance Company
SECURED CREDITOR IMPAIRED PROPERTY ENDORSEMENT
----------------------------------------------
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.
It is hereby agreed that the Policy is amended as follows:
1. Section II. NOTICE REQUIREMENTS AND CLAIM PROVISIONS, paragraph A is
deleted in its entirety and replaced with the following:
A. The INSURED shall give written notice to the Company, as soon as
possible but not later than forty-five (45) days after the INSURED first learns
of the DEFAULT and POLLUTION CONDITIONS with respect to Coverage A, a CLAIM with
respect to Coverage B, or POLLUTION CONDITIONS with respect to Coverage C to:
Manager, Pollution Insurance Products Unit
AIG Technical Services, Inc.
Environmental Claims Department
80 Pine Street, Sixth Floor
New York, New York 10005
and
Division Attorney - Pollution Legal Liability
Commerce and Industry Insurance Company
175 Water Street
New York, New York 10038
or other address(es) as substituted by the Company in writing.
2. Section III. DUTIES OF THE INSURED IN THE EVENT OF LOSS, paragraph A is
deleted in its entirety and replaced with the following:
A. The INSURED shall furnish the following to the Company as soon as
available and practicable after the INSURED first learns of the DEFAULT and
POLLUTION CONDITIONS with respect to Coverage A, a CLAIM with respect to
Coverage B, or POLLUTION CONDITIONS with respect to Coverage C:
1. all correspondence between the INSURED and any claimant;
2. all demands, summons, notices or other processes or papers filed
with a court of law, administrative agency or investigative body;
3. all technical reports, laboratory data, field notes or any other
documents generated by persons hired by the INSURED to investigate
or remediate POLLUTION CONDITIONS;
4. all expert reports, investigations and data collected by experts
retained by the INSURED, whether or not the INSURED intends to use
the material for any purpose;
5. all other information developed or discovered by the Insured
concerning the DEFAULT and POLLUTION CONDITIONS, or LOSS.
3. Section IV. EXCLUSIONS, paragraph G is deleted in its entirety and
replaced with the following:
G. arising from POLLUTION CONDITIONS existing prior to the effective date
of coverage for an INSURED PROPERTY if as of such date the INSURED knew that
such POLLUTION CONDITIONS could give rise to a LOSS under this Policy and failed
to disclose such POLLUTION CONDITIONS to the Company, or the Company did not
otherwise learn of such POLLUTION CONDITIONS from engineering reports,
environmental spreadsheets, the Secured Creditor Impaired Property
Questionnaire, or from other technical reports the Company obtained
independently.
4. Section VI. DEFINITIONS, paragraph D. CLEAN-UP COSTS, F. DEFAULT, and R.
POLLUTION CONDITIONS are deleted in their entirety and replaced with the
following, respectively:
D. CLEAN-UP COSTS means expenses, including reasonable and necessary legal
expenses incurred with the Company's written consent which consent shall not be
unreasonably withheld or delayed, incurred in the investigation (including
remedial studies and design), removal, remediation (including the associated
monitoring), or disposal of soil, surfacewater, groundwater or other
contamination:
(1) to the extent required by ENVIRONMENTAL LAWS, or by court order
or directive, the government or any political subdivision of the
United States of America or any state thereof, or Canada; or
(2) which have been actually incurred by the government or any
political subdivision of the United States of America or any state
thereof, or Canada or any province thereof, or by third-parties.
F. DEFAULT means the failure of a BORROWER to make any part of a
scheduled, periodic or final payment by the due date under the COMMERCIAL REAL
ESTATE LOAN or the Borrower's failure to comply with items designated as the
causes or events of default as provided by the terms of the COMMERCIAL REAL
ESTATE LOAN. The DEFAULT shall be deemed to occur on the day after such due date
under the COMMERCIAL REAL ESTATE LOAN provided that the DEFAULT was not cured
within the applicable grace period as provided by the terms of the COMMERCIAL
REAL ESTATE LOAN.
R. POLLUTION CONDITIONS means:
(1) with respect to Coverages A and C, the discharge, dispersal,
release or escape of any solid, liquid, gaseous or thermal irritant or
contaminant, including smoke, vapors, soot, fumes, acids, alkalis, toxic
chemicals, hazardous substances, and waste materials into or upon land, or any
structure on land, the atmosphere or any watercourse or body of water, including
groundwater, resulting in concentrations or amounts exceeding maximum levels
allowed by applicable ENVIRONMENTAL LAWS, or by governmental or court order or
directive, acting under the authority granted by ENVIRONMENTAL LAWS, provided
such conditions are not naturally present in the environment in the
concentration or amounts discovered.
(2) with respect to Coverage B, the discharge, dispersal, release,
or escape of any solid, liquid, gaseous or thermal irritant or contaminant,
including smoke, vapors, soot, fumes, acids, alkalis, toxic chemicals, and waste
materials into or upon land, or any structure on land, the atmosphere or any
watercourse or body of water, including groundwater, provided such conditions
are not naturally present in the environment in the concentration or amounts
discovered.
5. Section VIII. CONDITIONS, paragraph A. ASSIGNMENT is deleted in its
entirety and replaced with the following:
A. ASSIGNMENT - This Policy may not be assigned without the prior
written consent of the Company which consent shall not be unreasonably withheld.
Assignment of interest under this Policy shall not bind the Company until its
consent is endorsed thereon. However, this Policy may be assigned by the NAMED
INSURED, without the Company's prior written consent to a SERVICER or TRUSTEE,
or another entity which has, directly or indirectly, invested in or loaned money
in connection with an INSURED PROPERTY. The NAMED INSURED must provide the
Company written notice of such assignment within forty-five (45) days of the
effective date of the assignment.
All other terms, conditions and exclusions shall remain the same.
/S/
-----------------------------------------------
AUTHORIZED REPRESENTATIVE
or countersignature (in states where applicable)
<PAGE>
ENDORSEMENT NO. 3
THIS ENDORSEMENT EFFECTIVE 12:01 A.M.: 10/29/99
FORMS A PART OF POLICY NO: 476 17 76
ISSUED TO: Wells Fargo Bank of Minnesota, N.A. as Trustee
for the registered holders of
Banc of America Commercial Mortgage Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2000-2
BY: American International Specialty Lines Insurance Company
AMENDATORY ENDORSEMENT
----------------------
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.
It is hereby agreed that Paragraphs J & K of SECTION IV. EXCLUSIONS are deleted
in their entirety and replaced with the following:
J. arising from the presence of asbestos or asbestos-containing materials
installed in or on any building or other structure. With the exception of
residential properties, this exclusion shall not apply to CLAIMS for
BODILY INJURY or government mandated CLEAN-UP COSTS on any INSURED
PROPERTY.
K. arising from the presence of lead-based paint applied to any real or
personal property on or under an INSURED PROPERTY. With the exception of
residential properties, this exclusion shall not apply to CLAIMS for
BODILY INJURY or government mandated CLEAN-UP COSTS on any INSURED
PROPERTY.
/S/
-------------------------------------------
AUTHORIZED REPRESENTATIVE
or countersignature (where required by law)
<PAGE>
ENDORSEMENT NO. 3
THIS ENDORSEMENT EFFECTIVE 12:01 A.M.: 10/29/99
FORMS A PART OF POLICY NO: 476 17 77
ISSUED TO: Bank of America - Commercial Mortgage Lending
BY: American International Specialty Lines Insurance Company
AMENDATORY ENDORSEMENT
----------------------
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.
It is hereby agreed that Declarations Form 74067 (5/99), Item 1, NAMED INSURED
AND ADDRESS, Item 2, POLICY PERIOD, Item 3, LIMITS OF LIABILITY, are amended as
follows:
ITEM 1: NAMED INSURED:
Wells Fargo Bank of Minnesota, N.A. as Trustee
for the registered holders of
Banc of America Commercial Mortgage Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2000-2
ADDRESS: 11000 Broken Land Parkway
Columbia, MD 21044-3562
Attn: Corporate Trust Services (CMBS), Banc of
America Commercial Mortgage Inc., Series 2000-2
ITEM 2: POLICY PERIOD: 10/29/99 to 1/29/15
ITEM 3: LIMITS OF LIABILITY:
Each LOSS $3,764,000
Total all LOSSes $3,764,000
All other terms, conditions and exclusions remain the same.
/S/
-------------------------------------------
AUTHORIZED REPRESENTATIVE
or countersignature (where required by law)
<PAGE>
ENDORSEMENT NO. 4
THIS ENDORSEMENT, EFFECTIVE 12:01 AM, 10/29/99
FORMS A PART OF POLICY NO.: 476 17 77
ISSUED TO: Wells Fargo Bank of Minnesota, N.A. as Trustee
for the registered holders of
Banc of America Commercial Mortgage Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2000-2
BY: American International Specialty Lines Insurance Company
SECURED CREDITOR IMPAIRED PROPERTY ENDORSEMENT
----------------------------------------------
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY
It is hereby agreed that the Policy is amended as follows:
1. Section II. NOTICE REQUIREMENTS AND CLAIM PROVISIONS, paragraph A, is
deleted in its entirety and replaced with the following:
A. The INSURED shall give written notice to the Company, as soon as
possible but not later than forty-five (45) days after the INSURED
first learns of the DEFAULT and POLLUTION CONDITIONS with respect to
Coverage A, a CLAIM with respect to Coverage B, or POLLUTION
CONDITIONS with respect to Coverage C to:
Manager, Pollution Insurance Products Unit
AIG Technical Services, Inc.
Environmental Claims Department
80 Pine Street, Sixth Floor
New York, New York 10005
and
Division Attorney - Pollution Legal Liability
Commerce and Industry Insurance Company
175 Water Street
New York, New York 10038
or other address(es) as substituted by the Company in writing.
2. Section III. DUTIES OF THE INSURED IN THE EVENT OF LOSS, paragraph A is
deleted in its entirety and replaced with the following:
A. The INSURED shall furnish the following to the Company
as soon as available and practicable after the INSURED
first learns of the DEFAULT and POLLUTION CONDITIONS with
respect to Coverage A, a CLAIM with respect to Coverage B,
or POLLUTION CONDITIONS with respect to Coverage C:
1. all correspondence between the INSURED and any claimant;
2. all demands, summons, notices or other processes or papers filed
with a court of law, administrative agency or investigative body;
3. all technical reports, laboratory data, field notes or any other
documents generated by persons hired by the INSURED to investigate
or remediate POLLUTION CONDITIONS;
4. all expert reports, investigations and data collected by experts
retained by the INSURED, whether or not the INSURED intends to use
the material for any purpose;
5. all other information developed or discovered by the Insured
concerning the DEFAULT and POLLUTION CONDITIONS, or LOSS.
3. Section IV. EXCLUSIONS, paragraph G is deleted in its entirety and
replaced with the following:
G. arising from POLLUTION CONDITIONS existing prior to the
effective date of coverage for an INSURED PROPERTY if as
of such date the INSURED knew that such POLLUTION
CONDITIONS could give rise to a LOSS under this Policy and
failed to disclose such POLLUTION CONDITIONS to the
Company, or the Company did not otherwise learn of such
POLLUTION CONDITIONS from engineering reports,
environmental spreadsheets, the Secured Creditor Impaired
Property Questionnaire, or from other technical reports
the Company obtained independently.
4. Section VI. DEFINITIONS, paragraph D. CLEAN-UP COSTS, F. DEFAULT, and R.
POLLUTION CONDITIONS are deleted in their entirety and replaced with the
following, respectively:
D. CLEAN-UP COSTS means expenses, including reasonable and
necessary legal expenses incurred with the Company's
written consent which consent shall not be unreasonably
withheld or delayed, incurred in the investigation
(including remedial studies and design), removal,
remediation (including the associated monitoring), or
disposal of soil, surfacewater, groundwater or other
contamination:
(1) to the extent required by ENVIRONMENTAL LAWS, or by court order
or directive, the government or any political subdivision of the
United States of America or any state thereof, or Canada; or
(2) which have been actually incurred by the government or any
political subdivision of the United States of America or any state
thereof, or Canada or any province thereof, or by third-parties.
F. DEFAULT means the failure of a BORROWER to make any
part of a scheduled, periodic or final payment by the due
date under the COMMERCIAL REAL ESTATE LOAN or the
Borrower's failure to comply with items designated as the
causes or events of default as provided by the terms of
the COMMERCIAL REAL ESTATE LOAN. The DEFAULT shall be
deemed to occur on the day after such due date under the
COMMERCIAL REAL ESTATE LOAN provided that the DEFAULT was
not cured within the applicable grace period as provided
by the terms of the COMMERCIAL REAL ESTATE LOAN.
R. POLLUTION CONDITIONS means:
(1) with respect to Coverages A and C, the discharge, dispersal,
release or escape of any solid, liquid, gaseous or thermal irritant or
contaminant, including smoke, vapors, soot, fumes, acids, alkalis, toxic
chemicals, hazardous substances, and waste materials into or upon land, or any
structure on land, the atmosphere or any watercourse or body of water, including
groundwater, resulting in concentrations or amounts exceeding maximum levels
allowed by applicable ENVIRONMENTAL LAWS, or by governmental or court order or
directive, acting under the authority granted by ENVIRONMENTAL LAWS, provided
such conditions are not naturally present in the environment in the
concentration or amounts discovered.
(2) with respect to Coverage B, the discharge, dispersal, release,
or escape of any solid, liquid, gaseous or thermal irritant or contaminant,
including smoke, vapors, soot, fumes, acids, alkalis, toxic chemicals, and waste
materials into or upon land, or any structure on land, the atmosphere or any
watercourse or body of water, including groundwater, provided such conditions
are not naturally present in the environment in the concentration or amounts
discovered.
5. Section VIII. CONDITIONS, paragraph A. ASSIGNMENT is deleted in
its entirety and replaced with the following:
A. ASSIGNMENT - This Policy may not be assigned without the prior
written consent of the Company which consent shall not be unreasonably withheld.
Assignment of interest under this Policy shall not bind the Company until its
consent is endorsed thereon. However, this Policy may be assigned by the NAMED
INSURED, without the Company's prior written consent to a SERVICER or TRUSTEE,
or another entity which has, directly or indirectly, invested in or loaned money
in connection with an INSURED PROPERTY. The NAMED INSURED must provide the
Company written notice of such assignment within forty-five (45) days of the
effective date of the assignment.
All other terms, conditions and exclusions shall remain the same.
/S/
-----------------------------------------------
AUTHORIZED REPRESENTATIVE
or countersignature (in states where applicable)
<PAGE>
ENDORSEMENT NO. 5
THIS ENDORSEMENT EFFECTIVE 12:01 A.M.: 10/29/99
FORMS A PART OF POLICY #: 476 17 77
ISSUED TO: Wells Fargo Bank of Minnesota, N.A. as Trustee
for the registered holders of
Banc of America Commercial Mortgage Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2000-2
BY: American International Specialty Lines Insurance Company
AMENDATORY ENDORSEMENT
----------------------
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.
It is hereby agreed that Paragraphs J & K of SECTION IV. EXCLUSIONS are
deleted in their entirety and replaced with the following:
J. arising from the presence of asbestos or asbestos-containing materials
installed in or on any building or other structure. With the exception of
residential properties, this exclusion shall not apply to CLAIMS for
BODILY INJURY or government mandated CLEAN-UP COSTS on any INSURED
PROPERTY.
K. arising from the presence of lead-based paint applied to any real or
personal property on or under an INSURED PROPERTY. With the exception of
residential properties, this exclusion shall not apply to CLAIMS for
BODILY INJURY or government mandated CLEAN-UP COSTS on any INSURED
PROPERTY.
/S/
-------------------------------------------
AUTHORIZED REPRESENTATIVE
or countersignature (where required by law)
<PAGE>
ENDORSEMENT NO. 2
THIS ENDORSEMENT EFFECTIVE 12:01 A.M.: 3/13/00
FORMS A PART OF POLICY NO: 476 30 47
ISSUED TO: Bank of America
BY: American International Specialty Lines Insurance Company
AMENDATORY ENDORSEMENT
----------------------
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.
It is hereby agreed that Declarations Form 74067 (5/99), Item 1, NAMED INSURED
AND ADDRESS, Item 2, POLICY PERIOD, Item 3, LIMITS OF LIABILITY, Item 4,
DEDUCTIBLE, are amended as follows:
ITEM 1: NAMED INSURED:
Wells Fargo Bank of Minnesota, N.A. as Trustee
for the registered holders of
Banc of America Commercial Mortgage Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2000-2
ADDRESS: 11000 Broken Land Parkway
Columbia, MD 21044-3562
Attn: Corporate Trust Services (CMBS), Banc of
America Commercial Mortgage Inc., Series 2000-2
ITEM 2: POLICY PERIOD: 3/13/00 to 6/1/15
ITEM 3: LIMITS OF LIABILITY:
Each LOSS $7,500,000
Total all LOSSes $7,500,000
ITEM 4: DEDUCTIBLE: $0
All other terms, conditions and exclusions remain the same.
/S/
-------------------------------------------
AUTHORIZED REPRESENTATIVE
or countersignature (where required by law)
<PAGE>
ENDORSEMENT NO. 3
THIS ENDORSEMENT, EFFECTIVE 12:01 AM, 3/13/00
FORMS A PART OF POLICY NO.: 476 30 47
ISSUED TO: Wells Fargo Bank of Minnesota, N.A. as Trustee
for the registered holders of
Banc of America Commercial Mortgage Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2000-2
BY: American International Specialty Lines Insurance Company
SECURED CREDITOR IMPAIRED PROPERTY ENDORSEMENT
----------------------------------------------
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY
It is hereby agreed that the Policy is amended as follows:
1. Section II. NOTICE REQUIREMENTS AND CLAIM PROVISIONS, paragraph A. is
deleted in its entirety and replaced with the following:
A. The INSURED shall give written notice to the Company, as soon as
possible but not later than forty-five (45) days after the INSURED first learns
of the DEFAULT and POLLUTION CONDITIONS with respect to Coverage A, a CLAIM with
respect to Coverage B, or POLLUTION CONDITIONS with respect to Coverage C to:
Manager, Pollution Insurance Products Unit
AIG Technical Services, Inc.
Environmental Claims Department
80 Pine Street, Sixth Floor
New York, New York 10006
and
Division Attorney - Pollution Legal Liability
Commerce and Industry Insurance Company
175 Water Street
New York, New York 10038
or other address(es) as substituted by the Company in writing.
2. Section III. DUTIES OF THE INSURED IN THE EVENT OF LOSS, paragraph A is
deleted in its entirety and replaced with the following:
A. The INSURED shall furnish the following to the Company as soon as
available and practicable after the INSURED first learns of the DEFAULT and
POLLUTION CONDITIONS with respect to Coverage A, a CLAIM with respect to
Coverage B, or POLLUTION CONDITIONS with respect to Coverage C:
1. all correspondence between the INSURED and any Claimant;
2. all demands, summons, notices or other processes or papers filed
with a court of law, administrative agency or investigative body;
3. all technical reports, laboratory data, field notes or any other
documents generated by persons hired by the INSURED to investigate
or remediate POLLUTION CONDITIONS;
4. all expert reports, investigations and data collected by experts
retained by the INSURED, whether or not the INSURED intends to use
the material for any purpose;
5. all other information developed or discovered by the Insured
concerning the DEFAULT and POLLUTION CONDITIONS, or LOSS.
3. Section IV. EXCLUSIONS, paragraph G is deleted in its entirety and
replaced with the following:
G. arising from POLLUTION CONDITIONS existing prior to the effective
date of coverage for an INSURED PROPERTY if as of such date the INSURED knew
that such POLLUTION CONDITIONS could give rise to a LOSS under this Policy and
failed to disclose such POLLUTION CONDITIONS to the Company, or the Company did
not otherwise learn of such POLLUTION CONDITIONS from engineering reports,
environmental spreadsheets, the Secured Creditor Impaired Property
Questionnaire, or from other technical reports the Company obtained
independently.
4. Section VI. DEFINITIONS, paragraph D. CLEAN-UP COSTS, F. DEFAULT, and
R. POLLUTION CONDITIONS are deleted in their entirety and replaced with
the following, respectively:
D. CLEAN-UP COSTS means expenses, including reasonable and necessary
legal expenses incurred with the Company's written consent which consent shall
not be unreasonably withheld or delayed, incurred in the investigation
(including remedial studies and design), removal, remediation (including the
associated monitoring), or disposal of soil, surfacewater, groundwater or other
contamination:
(1) to the extent required by ENVIRONMENTAL LAWS, or by court order
or directive, the government or any political subdivision of the
United States of America or any state thereof, or Canada; or
(2) which have been actually incurred by the government or any
political subdivision of the United States of America or any state
thereof, or Canada or any province thereof, or by third-parties.
F. DEFAULT means the failure of a Borrower to make any part of a
scheduled, periodic or final payment by the due date under the COMMERCIAL REAL
ESTATE LOAN or the BORROWER'S failure to comply with items designated as the
causes or events of DEFAULT as provided by the terms of the COMMERCIAL REAL
ESTATE LOAN. The DEFAULT shall be deemed to occur on the day after such due date
under the COMMERCIAL REAL ESTATE LOAN provided that the DEFAULT was not cured
within the applicable grace period as provided by the terms of the COMMERCIAL
REAL ESTATE LOAN.
R. POLLUTION CONDITIONS means:
(1) with respect to Coverages A and C, the discharge, dispersal,
release or escape of any solid, liquid, gaseous or thermal irritant
or contaminant, including smoke, vapors, soot, fumes, acids,
alkalis, toxic chemicals, hazardous substances, and waste materials
into or upon land, or any structure on land, the atmosphere or any
watercourse or body of water, including groundwater, resulting in
concentrations or amounts exceeding maximum levels allowed by
applicable ENVIRONMENTAL LAWS, or by governmental or court order or
directive, acting under the authority granted by ENVIRONMENTAL LAWS,
provided such conditions are not naturally present in the
environment in the concentration or amounts discovered.
(2) with respect to Coverage B, the discharge, dispersal, release,
or escape of any solid, liquid, gaseous or thermal irritant or
contaminant, including smoke, vapors, soot, fumes, acids, alkalis,
toxic chemicals, and waste materials into or upon land, or any
structure on land, the atmosphere or any watercourse or body of
water, including groundwater, provided such conditions are not
naturally present in the environment in the concentration or amounts
discovered.
5. Section VIII. CONDITIONS, paragraph A. ASSIGNMENT is deleted in its
entirety and replaced with the following:
A. ASSIGNMENT - This Policy may not be assigned without the prior
written consent of the Company which consent shall not be unreasonably withheld.
Assignment of interest under this Policy shall not bind the Company until its
consent is endorsed thereon. However, this Policy may be assigned by the NAMED
INSURED, without the Company's prior written consent to a SERVICER or TRUSTEE,
or another entity which has, directly or indirectly, invested in or loaned money
in connection with an INSURED PROPERTY. The NAMED INSURED must provide the
Company written notice of such assignment within forty-five (45) days of the
effective date of the assignment.
All other terms, conditions and exclusions shall remain the same.
/S/
-------------------------------------------
AUTHORIZED REPRESENTATIVE
or countersignature (where required by law)
<PAGE>
ENDORSEMENT NO. 4
THIS ENDORSEMENT EFFECTIVE 12:01 A.M.: 3/13/00
FORMS A PART OF POLICY #: 476 30 47
ISSUED TO: Wells Fargo Bank of Minnesota, N.A. as Trustee
for the registered holders of
Banc of America Commercial Mortgage Inc.,
Commercial Mortgage Pass-Through Certificates. Series 2000-2
BY: American International Specialty Lines Insurance Company
AMENDATORY ENDORSEMENT
----------------------
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.
It is hereby agreed that Paragraphs J & K of SECTION IV. EXCLUSIONS are
deleted in their entirety and replaced with the following:
J. arising from the presence of asbestos or asbestos-containing materials
installed in or on any building or other structure. With the exception of
residential properties, this exclusion shall not apply to CLAIMS for
BODILY INJURY or government mandated CLEAN-UP COSTS on any INSURED
PROPERTY.
K. arising from the presence of lead-based paint applied to any real or
personal property on or under an INSURED PROPERTY. With the exception of
residential properties, this exclusion shall not apply to CLAIMS for
BODILY INJURY or government mandated CLEAN-UP COSTS on any INSURED
PROPERTY.
/S/
-------------------------------------------
AUTHORIZED REPRESENTATIVE
or countersignature (where required by law)
<PAGE>
ENDORSEMENT NO. 2
THIS ENDORSEMENT EFFECTIVE 12:01 A.M.: 3/20/00
FORMS A PART OF POLICY NO: 476 30 54
ISSUED TO: Bank of America, N.A.
BY: American International Specialty Lines Insurance Company
AMENDATORY ENDORSEMENT
----------------------
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY
It is hereby agreed that Declarations Form 75793 (2/00), Item 1, NAMED
INSURED AND ADDRESS, Item 2, POLICY PERIOD, and Item 3, LIMITS OF LIABILITY, and
Item 4, DEDUCTIBLE are amended as follows:
ITEM 1: NAMED INSURED: Wells Fargo Bank of Minnesota, N.A. as Trustee
for the registered holders of
Banc of America Commercial Mortgage Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2000-2
ADDRESS: 11000 Broken Land Parkway
Columbia, MD 21044-3562
ATTN: Corporate Trust Services (CMBS), Banc of America
Commercial Mortgage Inc., Series 2000-2
ITEM 2: POLICY PERIOD: 3/20/00 to 6/20/15
ITEM 3: LIMITS OF LIABILITY:
Each LOSS $10,250,000
Total all LOSSes $10,250,000
ITEM 4: DEDUCTIBLE: $0
All other terms, conditions and exclusions remain the same.
/S/
-------------------------------------------
AUTHORIZED REPRESENTATIVE
or countersignature (where required by law)
<PAGE>
ENDORSEMENT NO. 3
THIS ENDORSEMENT, EFFECTIVE 12:01 AM.: 3/20/00
FORMS A PART OF POLICY NO.: 476 30 54
ISSUED TO: Wells Fargo Bank of Minnesota, N.A. as Trustee
for the registered holders of
Banc of America Commercial Mortgage Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2000-2
BY: American International Specialty Lines Insurance Company
SECURED CREDITOR IMPAIRED PROPERTY ENDORSEMENT
----------------------------------------------
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.
It is hereby agreed that the Policy is amended as follows:
1. Section II. NOTICE REQUIREMENTS AND CLAIM PROVISIONS, paragraph A. is
deleted in its entirety and replaced with the following:
A. The INSURED shall give written notice to the Company, as soon as
possible but not later than forty-five (45) days after the INSURED first learns
of the DEFAULT and POLLUTION CONDITIONS with respect to Coverage A, a CLAIM with
respect to Coverage B, or POLLUTION CONDITIONS with respect to Coverage C to:
Manager, Pollution Insurance Products Unit
AIG Technical Services, Inc.
Environmental Claims Department
80 Pine Street, Sixth Floor
New York, New York 10005
and
Division Attorney - Pollution Legal Liability
Commerce and Industry Insurance Company
175 Water Street
New York, New York 10038
or other address(es) as substituted by the Company in writing.
2. Section III. DUTIES OF THE INSURED IN THE EVENT OF LOSS, paragraph A is
deleted in its entirety and replaced with the following:
A. The INSURED shall furnish the following to the Company as soon as
available and practicable after the INSURED first learns of the DEFAULT and
POLLUTION CONDITIONS with respect to Coverage A, a CLAIM with respect to
Coverage B, or POLLUTION CONDITIONS with respect to Coverage C:
1. all correspondence between the INSURED and any claimant;
2. all demands, summons, notices or other processes or papers
filed with a court of law, administrative agency or
investigative body;
3. all technical reports, laboratory data, field notes or any
other documents generated by persons hired by the INSURED to
investigate or remediate POLLUTION CONDITIONS;
4. all expert reports, investigations and data collected by
experts retained by the INSURED, whether or not the INSURED
intends to use the material for any purpose;
5. all other information developed or discovered by the Insured
concerning the DEFAULT and POLLUTION CONDITIONS, or LOSS.
3. Section IV. EXCLUSIONS, paragraph G is deleted in its entirety and
replaced with the following:
G. arising from POLLUTION CONDITIONS existing prior to the effective date
of coverage for an INSURED PROPERTY if as of such date the INSURED knew that
such POLLUTION CONDITIONS could give rise to a LOSS under this Policy and failed
to disclose such POLLUTION CONDITIONS to the Company, or the Company did not
otherwise learn of such POLLUTION CONDITIONS from engineering reports,
environmental spreadsheets, the Secured Creditor Impaired Property
Questionnaire, or from other technical reports the Company obtained
independently.
4. Section VI. DEFINITIONS, paragraph D. CLEAN-UP COSTS, F. DEFAULT, and R.
POLLUTION CONDITIONS are deleted in their entirety and replaced with the
following, respectively:
D. CLEAN-UP COSTS means expenses, including reasonable and necessary legal
expenses incurred with the Company's written consent which consent shall not be
unreasonably withheld or delayed, incurred in the investigation (including
remedial studies and design), removal, remediation (including the associated
monitoring), or disposal of soil, surfacewater, groundwater or other
contamination:
(1) to the extent required by ENVIRONMENTAL LAWS, or by court
order or directive, the government or any political
subdivision of the United States of America or any state
thereof, or Canada; or
(2) which have been actually incurred by the government or any
political subdivision of the United States of America or any
state thereof, or Canada or any province thereof, or by
third-parties.
F. DEFAULT means the failure of a BORROWER to make any part of a
scheduled, periodic or final payment by the due date under the COMMERCIAL REAL
ESTATE LOAN or the BORROWER'S failure to comply with items designated as the
causes or events of default as provided by the terms of the COMMERCIAL REAL
ESTATE LOAN. The DEFAULT shall be deemed to occur on the day after such due date
under the COMMERCIAL REAL ESTATE LOAN provided that the DEFAULT was not cured
within the applicable grace period as provided by the terms of the COMMERCIAL
REAL ESTATE LOAN.
R. POLLUTION CONDITIONS means:
(1) with respect to Coverages A and C, the discharge, dispersal,
release or escape of any solid, liquid, gaseous or thermal irritant or
contaminant, including smoke, vapors, soot, fumes, acids, alkalis, toxic
chemicals, hazardous substances, and waste materials into or upon land, or
any structure on land, the atmosphere or any watercourse or body of water,
including groundwater, resulting in concentrations or amounts exceeding
maximum levels allowed by applicable ENVIRONMENTAL LAWS, or by
governmental or court order or directive, acting under the authority
granted by ENVIRONMENTAL LAWS, provided such conditions are not naturally
present in the environment in the concentration or amounts discovered.
(2) with respect to Coverage B, the discharge, dispersal, release,
or escape of any solid, liquid, gaseous or thermal irritant or
contaminant, including smoke, vapors, soot, fumes, acids, alkalis, toxic
chemicals, and waste materials into or upon land, or any structure on
land, the atmosphere or any watercourse or body of water, including
groundwater, provided such conditions are not naturally present in the
environment in the concentration or amounts discovered.
5. Section VIII. CONDITIONS, paragraph A. ASSIGNMENT is deleted in its
entirety and replaced with the following:
A. ASSIGNMENT - This Policy may not be assigned without the prior written
consent of the Company which consent shall not be unreasonably withheld.
Assignment of interest under this Policy shall not bind the Company until its
consent is endorsed thereon. However, this Policy may be assigned by the NAMED
INSURED, without the Company's prior written consent to a SERVICER or TRUSTEE,
or another entity which has, directly or indirectly, invested in or loaned money
in connection with an INSURED PROPERTY. The NAMED INSURED must provide the
Company written notice of such assignment within forty-five (45) days of the
effective date of the assignment.
All other terms, conditions and exclusions shall remain the same.
/S/
-----------------------------------------------
AUTHORIZED REPRESENTATIVE
or countersignature (in states where applicable)
<PAGE>
ENDORSEMENT NO. 4
THIS ENDORSEMENT EFFECTIVE 12:01 A.M.: 3/20/00
FORMS A PART OF POLICY #: 476 30 54
ISSUED TO: Wells Fargo Bank of Minnesota, N.A. as Trustee
for the registered holders of
Banc of America Commercial Mortgage Inc.,
Commercial Mortgage Pass-Through Certificates. Series 2000-2
BY: American International Specialty Lines Insurance Company
AMENDATORY ENDORSEMENT
----------------------
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.
It is hereby agreed that Paragraphs J & K of SECTION IV. EXCLUSIONS are
deleted in their entirety and replaced with the following:
J. arising from the presence of asbestos or asbestos-containing materials
installed in or on any building or other structure. With the exception of
residential properties, this exclusion shall not apply to CLAIMS for
BODILY INJURY or government mandated CLEAN-UP COSTS on any INSURED
PROPERTY.
K. arising from the presence of lead-based paint applied to any real or
personal property on or under an INSURED PROPERTY. With the exception of
residential properties, this exclusion shall not apply to CLAIMS for
BODILY INJURY or government mandated CLEAN-UP COSTS on any INSURED
PROPERTY.
/S/
-------------------------------------------
AUTHORIZED REPRESENTATIVE
or countersignature (where required by law)
<PAGE>
ENDORSEMENT NO. 1
THIS ENDORSEMENT EFFECTIVE 12:01 A.M.: 8/3/00
FORMS A PART OF POLICY #: 195 03 71
ISSUED TO: Bank of America
BY: American International Specialty Lines Insurance Company
AMENDATORY ENDORSEMENT
----------------------
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.
It is hereby agreed that Declarations Form 75793 (2/00), Item 1, NAMED Insured,
are amended as follows:
ITEM 1: NAMED INSURED:
Wells Fargo Bank of Minnesota, N.A. as Trustee
for the registered holders of
Banc of America Commercial Mortgage Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2000-2
ADDRESS: 11000 Broken Land Parkway
Columbia, MD 21044-3562
Attn: Corporate Trust Services (CMBS), Banc of
America Commercial Mortgage Inc., Series 2000-2
/S/
-------------------------------------------
AUTHORIZED REPRESENTATIVE
or countersignature (where required by law)
<PAGE>
ENDORSEMENT NO. 2
THIS ENDORSEMENT, EFFECTIVE 12:01 AM.: 8/3/00
FORMS A PART OF POLICY NO.: 195 03 71
ISSUED TO: Wells Fargo Bank of Minnesota, N.A. as Trustee
for the registered holders of
Banc of America Commercial Mortgage Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2000-2
BY: American International Specialty Lines Insurance Company
SECURED CREDITOR IMPAIRED PROPERTY ENDORSEMENT
----------------------------------------------
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.
It is hereby agreed that the Policy is amended as follows:
1. Section II. NOTICE REQUIREMENTS AND CLAIM PROVISIONS, paragraph A. is
deleted in its entirety and replaced with the following:
A. The INSURED shall give written notice to the Company, as soon as
possible but not later than forty-five (45) days after the INSURED first learns
of the DEFAULT and POLLUTION CONDITIONS with respect to Coverage A, a CLAIM with
respect to Coverage B, or POLLUTION CONDITIONS with respect to Coverage C to:
Manager, Pollution Insurance Products Unit
AIG Technical Services, Inc.
Environmental Claims Department
80 Pine Street, Sixth Floor
New York, New York 10005
and
Division Attorney - Pollution Legal Liability
Commerce and Industry Insurance Company
175 Water Street
New York, New York 10038
or other address(es) as substituted by the Company in writing.
2. Section III. DUTIES OF THE INSURED IN THE EVENT OF LOSS, paragraph A is
deleted in its entirety and replaced with the following:
A. The INSURED shall furnish the following to the Company as soon as
available and practicable after the INSURED first learns of the DEFAULT and
POLLUTION CONDITIONS with respect to Coverage A, a CLAIM with respect to
Coverage B, or POLLUTION CONDITIONS with respect to Coverage C:
1. all correspondence between the INSURED and any claimant;
2. all demands, summons, notices or other processes or papers
filed with a court of law, administrative agency or
investigative body;
3. all technical reports, laboratory data, field notes or any
other documents generated by persons hired by the INSURED to
investigate or remediate POLLUTION CONDITIONS;
4. all expert reports, investigations and data collected by
experts retained by the INSURED, whether or not the INSURED
intends to use the material for any purpose;
5. all other information developed or discovered by the Insured
concerning the DEFAULT and POLLUTION CONDITIONS, or LOSS.
3. Section IV. EXCLUSIONS, paragraph G is deleted in its entirety and
replaced with the following:
G. arising from POLLUTION CONDITIONS existing prior to the effective date
of coverage for an INSURED PROPERTY if as of such date the INSURED knew that
such POLLUTION CONDITIONS could give rise to a LOSS under this Policy and failed
to disclose such POLLUTION CONDITIONS to the Company, or the Company did not
otherwise learn of such POLLUTION CONDITIONS from engineering reports,
environmental spreadsheets, the Secured Creditor Impaired Property
Questionnaire, or from other technical reports the Company obtained
independently.
4. Section VI. DEFINITIONS, paragraph D. CLEAN-UP COSTS, F. DEFAULT, and R.
POLLUTION CONDITIONS are deleted in their entirety and replaced with the
following, respectively:
D. CLEAN-UP COSTS means expenses, including reasonable and necessary legal
expenses incurred with the Company's written consent which consent shall not be
unreasonably withheld or delayed, incurred in the investigation (including
remedial studies and design), removal, remediation (including the associated
monitoring), or disposal of soil, surfacewater, groundwater or other
contamination:
(1) to the extent required by ENVIRONMENTAL LAWS, or by court
order or directive, the government or any political
subdivision of the United States of America or any state
thereof, or Canada; or
(2) which have been actually incurred by the government or any
political subdivision of the United States of America or any
state thereof, or Canada or any province thereof, or by
third-parties.
F. DEFAULT means the failure of a BORROWER to make any part of a
scheduled, periodic or final payment by the due date under the COMMERCIAL REAL
ESTATE LOAN or the BORROWER'S failure to comply with items designated as the
causes or events of default as provided by the terms of the COMMERCIAL REAL
ESTATE LOAN. The DEFAULT shall be deemed to occur on the day after such due date
under the COMMERCIAL REAL ESTATE LOAN provided that the DEFAULT was not cured
within the applicable grace period as provided by the terms of the COMMERCIAL
REAL ESTATE LOAN.
R. POLLUTION CONDITIONS means:
(1) with respect to Coverages A and C, the discharge, dispersal,
release or escape of any solid, liquid, gaseous or thermal irritant or
contaminant, including smoke, vapors, soot, fumes, acids, alkalis, toxic
chemicals, hazardous substances, and waste materials into or upon land, or
any structure on land, the atmosphere or any watercourse or body of water,
including groundwater, resulting in concentrations or amounts exceeding
maximum levels allowed by applicable ENVIRONMENTAL LAWS, or by
governmental or court order or directive, acting under the authority
granted by ENVIRONMENTAL LAWS, provided such conditions are not naturally
present in the environment in the concentration or amounts discovered.
(2) with respect to Coverage B, the discharge, dispersal, release,
or escape of any solid, liquid, gaseous or thermal irritant or
contaminant, including smoke, vapors, soot, fumes, acids, alkalis, toxic
chemicals, and waste materials into or upon land, or any structure on
land, the atmosphere or any watercourse or body of water, including
groundwater, provided such conditions are not naturally present in the
environment in the concentration or amounts discovered.
5. Section VIII. CONDITIONS, paragraph A. ASSIGNMENT is deleted in its
entirety and replaced with the following:
A. ASSIGNMENT - This Policy may not be assigned without the prior written
consent of the Company which consent shall not be unreasonably withheld.
Assignment of interest under this Policy shall not bind the Company until its
consent is endorsed thereon. However, this Policy may be assigned by the NAMED
INSURED, without the Company's prior written consent to a SERVICER or TRUSTEE,
or another entity which has, directly or indirectly, invested in or loaned money
in connection with an INSURED PROPERTY. The NAMED INSURED must provide the
Company written notice of such assignment within forty-five (45) days of the
effective date of the assignment.
All other terms, conditions and exclusions shall remain the same.
/S/
-----------------------------------------------
AUTHORIZED REPRESENTATIVE
or countersignature (in states where applicable)
Copyright, American International Group, Inc., 2000
<PAGE>
ENDORSEMENT NO. 3
THIS ENDORSEMENT EFFECTIVE 12:01 A.M.: 8/3/00
FORMS A PART OF POLICY #: 195 03 71
ISSUED TO: Wells Fargo Bank of Minnesota, N.A. as Trustee
for the registered holders of
Banc of America Commercial Mortgage Inc.,
Commercial Mortgage Pass-Through Certificates. Series 2000-2
BY: American International Specialty Lines Insurance Company
AMENDATORY ENDORSEMENT
----------------------
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.
It is hereby agreed that Paragraphs J & K of SECTION IV. EXCLUSIONS are deleted
in their entirety and replaced with the following:
J. arising from the presence of asbestos or asbestos-containing materials
installed in or on any building or other structure. With the exception of
residential properties, this exclusion shall not apply to CLAIMS for
BODILY INJURY or government mandated CLEAN-UP COSTS on any INSURED
PROPERTY.
K. arising from the presence of lead-based paint applied to any real or
personal property on or under an INSURED PROPERTY. With the exception of
residential properties, this exclusion shall not apply to CLAIMS for
BODILY INJURY or government mandated CLEAN-UP COSTS on any INSURED
PROPERTY.
/S/
-------------------------------------------
AUTHORIZED REPRESENTATIVE
or countersignature (where required by law)
<PAGE>
EXHIBIT M
FORM OF REQUEST FOR REVIEW
__________________, 20_____
Wells Fargo Bank Minnesota, N.A.
1015 10th Ave. S.E.
Minneapolis, MN 55414
Attention: Mortgage Document Custody - Banc of America Commercial Mortgage
Inc. Commercial Mortgage Pass-Through Certificates, Series 2000-2
Re: Amended and Restated Pooling and Servicing Agreement dated as
of October 1, 2000 (the "Agreement") among Banc of America
Commercial Mortgage Inc., as Depositor, Bank of America, N.A.
and HVB Realty Capital Inc., as Mortgage Loan Sellers, ORIX
Real Estate Capital Markets, LLC, as Master Servicer, Lennar
Partners, Inc., as Special Servicer, and Wells Fargo Bank
Minnesota, N.A., as Trustee and REMIC Administrator for the
Certificateholders of Commercial Mortgage Pass Through
Certificates, Series 2000-2
Ladies and Gentlemen:
Pursuant to Section 2.02(b) of the above referenced Agreement,
[_________________] requests a review of the following Mortgage file:
Property Name: ________________________________________
Property Address: ________________________________________
Loan Number: ________________________________________
The results of such review should be returned to
[___________________] at the following address:
________________________________
________________________________
________________________________
Phone:__________________________
Fax: __________________________
<PAGE>
<TABLE>
EXHIBIT N
FORM OF CMSA PROPERTY FILE
BACM 2000-2
PROPERTY FILE
(DATA RECORD LAYOUT)
CROSS REFERENCED AS "L"
SPECIFICATION DESCRIPTION/COMMENTS
------------------------------------------------------------------------------------------------------------------------------------
Acceptable Media Types Magnetic Tape, Diskette, Electronic Transfer
Character Set ASCII
Field Delineation Comma
Density (Bytes-Per-Inch) 1600 or 6250
Magnetic Tape Label None (unlabeled)
Magnetic Tape Blocking Factor 10285 (17 records per block)
Physical Media Label Servicer Name; Data Type (Collection Period Data); Density
(Bytes-Per-Inch); Blocking Factor; Record Length
Return Address Label Required for return of physical media (magnetic tape or diskette)
<CAPTION>
FIELD FORMAT LOAN FIELD
FIELD NAME NUMBER TYPE EXAMPLE DESCRIPTION/COMMENTS REFERENCE
------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Transaction ID 1 AN XXX97001 Unique Issue Identification Mnemonic S1, L1
Loan ID 2 AN XXX9701A Unique Servicer Loan Number Assigned To Each
Collateral Item In A Pool S3, L3
Prospectus Loan ID 3 AN 123 Unique Identification Number Assigned To Each
Collateral Item In The Prospectus S4, L4
Property ID 4 AN 1001001 Should contain Prospectus ID and property
identifier, e.g., 1001001, 1000002
Distribution Date 5 AN YYYYMMDD Date Payments Made To Certificateholders L5
Cross-Collateralized Loan Grouping 6 AN Text All Loans With The Same Value Are Crossed, For
example: "X021" would be populated in this S75
field for all related loans, "X022" would be
populated for the next group of related loans.
Property Name 7 AN Text S55
Property Address 8 AN Text S56
Property City 9 AN Text S57
Property State 10 AN FL S58
Property Zip Code 11 AN 30303 S59
Property County 12 AN Text S60
Property Type Code 13 AN MF S61
Year Built 14 AN YYYY S64
Year Last Renovated 15 AN YYYY
Net Square Feet At Contribution 16 Numeric 25000 RT, IN, WH, OF, MU, OT S62
# Of Units/Beds/Rooms At Contribution 17 Numeric 75 MF, MH, LO,MU, HC, SS S63
</TABLE>
<PAGE>
<TABLE>
BACM 2000 2
PROPERTY FILE
(DATA RECORD LAYOUT)
CROSS REFERENCED AS "L"
<CAPTION>
FIELD FORMAT LOAN FIELD
FIELD NAME NUMBER TYPE EXAMPLE DESCRIPTION/COMMENTS REFERENCE
------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Property Status 18 AN 1 1=FCL, 2=REO, 3=Defeased, 4=Partial Release,
5=Released, 6= Same as at Contribution
Allocated Percentage of Loan at
Contribution 19 Numeric 0.75 Issuer to allocate loan % attributable to property
for multiproperty loans
Current Allocated Percentage 20 Numeric 0.75 Maintained by servicer. If not supplied in by Issuer
or Underwriter, use Underwriting NOI or NCF to
calculate
Current Allocated Ending Scheduled
Loan Amount 21 Numeric 5900900.00 Calculation based on Current Allocated Percentage L7
and Current Ending Scheduled Principal Balance
Balance (L7) for associated loan.
Ground Lease (Y/S/N) 22 AN N Either Y=Yes, S=Subordinate, N= No ground lease S74
Total Reserve Balance 23 Numeric 25000.00 For Maintenance, Repairs, & Environmental. (Excludes S77
Tax & Insurance Escrows). An amount should be
printed if the value in Setup File field 77 is "Y"
Most Recent Appraisal Date 24 AN YYYYMMDD L74
Most Recent Appraisal Value 25 Numeric 1000000.00 L75
Date Asset Expected to Be Resolved
or Foreclosed 26 AN YYYYMMDD Could be different dates for different properties. L79
If in Foreclosure Expected Date of Foreclosure
and if REO Expected Sale Date.
Foreclosure Date 27 AN YYYYMMDD L42
REO Date 28 AN YYYYMMDD L43
Most Recent Physical Occupancy 29 Numeric 0.75 L71
Occupancy As of Date 30 AN YYYYMMDD Typically should be the effective date of the Rent
Roll
Date Lease Rollover Review 31 AN YYYYMMDD Roll over review to be completed every 12 months
% Sq. Feet expiring 1-12 months 32 Numeric 0.2 Apply to Property Types - RT, IN, WH, OF, MU, OT S62
% Sq. Feet expiring 13-24 months 33 Numeric 0.2 Apply to Property Types - RT, IN, WH, OF, MU, OT S62
% Sq. Feet expiring 25-36 months 34 Numeric 0.2 Apply to Property Types - RT, IN, WH, OF, MU, OT S62
% Sq. Feet expiring 37-48 months 35 Numeric 0.2 Apply to Property Types - RT, IN, WH, OF, MU, OT S62
% Sq. Feet expiring 49-60 months 36 Numeric 0.2 Apply to Property Types - RT, IN, WH, OF, MU, OT S62
Largest Tenant 37 AN Text For Office, WH, Retail, Industrial, Other or Mixed
Use, as applicable
Square Feet of Largest Tenant 38 Numeric 15000
2nd Largest Tenant 39 AN Text For Office, WH, Retail, Industrial, Other or Mixed
Use, as applicable
Square Feet of 2nd Largest Tenant 40 Numeric 15000
3rd Largest Tenant 41 AN Text For Office, WH, Retail, Industrial, Other or Mixed
Use, as applicable
Square Feet of 3rd Largest Tenant 42 Numeric 15000
Fiscal Year End Month 43 Numeric MM Needed to indicate month ending for borrower's
Fiscal Year. For example: "12"
</TABLE>
<PAGE>
<TABLE>
BACM 2000 2
PROPERTY FILE
(DATA RECORD LAYOUT)
CROSS REFERENCED AS "L"
<CAPTION>
FIELD FORMAT LOAN FIELD
FIELD NAME NUMBER TYPE EXAMPLE DESCRIPTION/COMMENTS REFERENCE
------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Contribution Financials As Of Date 44 AN YYYYMMDD S72
Revenue At Contribution 45 Numeric 1000000.00 Should match the prospectus if available. At the
Property Level S70
Operating Expenses At Contribution 46 Numeric 1000000.00 Should match the prospectus if available. At the
Property Level S71
NOI At Contribution 47 Numeric 1000000.00 Should match the prospectus if available. At the
Property Level S65
DSCR (NOI) At Contribution 48 Numeric 1.5 Should match the prospectus if available. S66
Appraisal Value At Contribution 49 Numeric 1000000.00 S67
Appraisal Date At Contribution 50 AN YYYYMMDD S68
Physical Occupancy At Contribution 51 Numeric 0.9 S69
Date of Last Inspection 52 AN YYYYMMDD Date of last physical site inspection
Preceding Fiscal Year Financial As
of Date 53 AN YYYYMMDD L58
Preceding Fiscal Year Revenue 54 Numeric 1000000.00 L52
Preceding Fiscal Year Operating
Expenses 55 Numeric 1000000.00 L53
Preceding Fiscal Year NOI 56 Numeric 1000000.00 L54
Preceding Fiscal Yr Debt Service
Amount 57 Numeric 1000000.00 Calculate using P20 (percentage) to get the allocated L55
amount for each property
Preceding Fiscal Year DSCR (NOI) 58 Numeric 1.3 Uses the property NOI and the allocated debt service L56
amount
Preceding Fiscal Year Physical
Occupancy 59 Numeric 0.9 L57
Second Preceding FY Financial As of
Date 60 AN YYYYMMDD L65
Second Preceding Fiscal Year Revenue 61 Numeric 1000000.00 L59
Second Preceding FY Operating Expenses 62 Numeric 1000000.00 L60
Second Preceding Fiscal Year NOI 63 Numeric 1000000.00 L61
Second Preceding FY Debt Service
Amount 64 Numeric 1000000.00 Calculate using P20 (percentage) to get the allocated
amount for each property L62
Second Preceding Fiscal Year DSCR
(NOI) 65 Numeric 1.3 Uses the property NOI and the allocated debt service
amount L63
Second Preceding FY Physical
Occupancy 66 Numeric 0.9 L64
Property Contribution Date 67 AN YYYYMMDD Date Property was contributed L85
Most Recent Revenue 68 Numeric 1000000.00 Most Recent Revenue L66
Most Recent Operating Expenses 69 Numeric 1000000.00 Most Recent Operating Expenses L67
Most Recent NOI 70 Numeric 1000000.00 Most Recent Net Operating Income L68
Most Recent Debt Service Amount 71 Numeric 1000000.00 Calculate using P20 (percentage) to get the allocated
amount for each property L69
Most Recent DSCR (NOI) 72 Numeric 2.55 Uses the property NOI and the allocated debt service
amount L70
</TABLE>
<PAGE>
<TABLE>
BACM 2000 2
PROPERTY FILE
(DATA RECORD LAYOUT)
CROSS REFERENCED AS "L"
<CAPTION>
FIELD FORMAT LOAN FIELD
FIELD NAME NUMBER TYPE EXAMPLE DESCRIPTION/COMMENTS REFERENCE
------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Most Recent Financial As of Start Date 73 AN YYYYMMDD Start date used to calculate Most Recent information
either YTD or trailing 12 months L72
Most Recent Financial As of End Date 74 AN YYYYMMDD End date used to calculate Most Recent information
either YTD or trailing 12 months L73
Most Recent Financial Indicator 75 AN T or Y T= Trailing 12 months Y = Year to Date L82
NCF At Contribution 76 Numeric 1000000.00 Net Cash Flow At Contribution. Should match the
prospectus if available. S83
DSCR (NCF) At Contribution 77 Numeric 1.5 DSCR At Contribution using NCF to calculate. Should
match the prospectus if available. S84
Preceding Fiscal Year NCF 78 Numeric 1000000.00 Preceding Fiscal Year Net Cash Flow related to
Financial As of Date P53. L92
Preceding Fiscal Year DSCR (NCF) 79 Numeric 2.55 Preceding Fiscal Yr Debt Service Coverage Ratio
using NCF related to Financial As of Date L93
Second Preceding FY NCF 80 Numeric 1000000.00 Second Preceding Fiscal Year Net Cash Flow related
to Financial As of Date P60. L94
Second Preceding FY DSCR (NCF) 81 Numeric 2.55 Second Preceding Fiscal Year Debt Service Coverage L95
Ratio using Net Cash Flow related to Financial As
of Date P60.
Most Recent NCF 82 Numeric 1000000.00 Most Recent Net Cash Flow related to Financial As
of Date P74. L96
Most Recent DSCR (NCF) 83 Numeric 2.55 Most Recent Debt Service Coverage Ratio using Net L97
Cash Flow related to Financial As of Date P74.
NOI/NCF Indicator 84 AN Text Indicates how NOI or Net Cash Flow was calculated
should be the same for each financial L90
period. See NOI/NCF Indicator Legend.
Deferred Maintenance Flag 85 AN N Either Y=Yes or N= No, Deferred Maintenance
Oper Statmt Analysis Income Comments 86 AN Text Used in the Operating Statement Analysis Report to
compare the 2 preceding consecutive year end
periods. Variance greater than 15% + or - for EGI
between the 2 periods.
Oper Statmt Analysis Expense Comments 87 AN Text Used in the Operating Statement Analysis Report to
compare the 2 preceding consecutive year end
periods. Variance greater than 15% + or - for Total
Operating Expenses between the 2 periods.
Oper Statmt Analysis Capital Items
Comments 88 AN Text Used in the Operating Statement Analysis Report to
compare the 2 preceding consecutive year end
periods. Variance greater than 15% + or - for Total
Capital Items AND Variance greater than 10% +or for
ANY DSCR between the 2 periods.
Oper Statmt Analysis Source of Fin
Data 89 AN Text Fill with "Operating Stmt" or "Tax Return" or
"Other", for 3rd, 2nd and Preceding periods.
</TABLE>
<PAGE>
<TABLE>
BACM 2000 2
PROPERTY FILE
(DATA RECORD LAYOUT)
CROSS REFERENCED AS "L"
<CAPTION>
FIELD FORMAT LOAN FIELD
FIELD NAME NUMBER TYPE EXAMPLE DESCRIPTION/COMMENTS REFERENCE
------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
NOI Adjustment Wksht Income 90 AN Text Used in the NOI Adjustment Worksheet for the most
Comments recent Annual Financials
NOI Adjustment Wksht Expense Comments 91 AN Text Used in the NOI Adjustment Worksheet for the most
recent Annual Financials
NOI Adjustment Wksht Capital Items 92 AN Text Used in the NOI Adjustment Worksheet for the most
Comments recent Annual Financials
NOI Adjustment Wksht Source of Fin 93 AN Text Fill with "Operating Stmt" or "Tax Return" or
Data "Other", for the most recent Annual financial.
Preceding FY Sales per Square Foot 94 Numeric 236.75 Applicable to Retail Properties only and should be
reported based on annual financial records.
(Required per Section 4.02 of PSA)
</TABLE>
PROPERTY TYPES CODE NOI/NCF INDICATOR
LEGEND LEGEND
Multifamily MF CMSA Calculated using CMSA standard
Retail RT PSA Calculated using a definition given in the
PSA
Health Care HC U/W Calculated using the underwriting method
Industrial IN
Warehouse WH
Mobile Home Park MH
Office OF
Mixed Use MU
Lodging LO
Self Storage SS
Other Securities OT
Securities SE
<PAGE>
EXHIBIT O
FORM OF CMSA FINANCIAL FILE
ATTACHMENT A:
CMSA FINANCIAL FILE - CATEGORY CODE MATRIX
PROPERTY TYPE
-------------------------------------
CODE/ MULTI- HEALTH
SORT ORDER DESCRIPTION COMMERCIAL FAMILY CARE LODGING
-------------------------------------------------------------------------------
INCOME
010GROSRNT Gross Potential Rent o o o
020VACANCY Less: o o o
Vacancy/Collection
Loss
030BASERNT Base Rent o o
040EXPREMB Expense Reimbursement o
050PCTRENT Percentage Rent o
060ROOMREV Room Revenue o
070FOODBEV Food & Beverage o
Revenues
080PHONE Telephone Revenue o
090OTHDREV Other Departmental o
Revenue
100PVTPAY Private Pay o
110MEDCARE Medicare/Medicaid o
120NURSING Nursing/Medical o
Income
130MEALS Meals Income o
140LAUNDRY Laundry/Vending o
Income
150PARKING Parking Income o o
160OTHERIN Other Income o o o o
EXPENSES 270ROOMS Room (Department) o
280FOODBEV Food & Beverage (Departmental) o
290PHONE Telephone Expenses o
(Departmental)
300OTHDEPT Other Dept. Expenses o
310RETAXES Real Estate Taxes o o o o
320PROPINS Property Insurance o o o o
330UTILITI Utilities o o o o
340REPAIRS Repairs and o o o o
Maintenance
350JANITOR Janitorial o
360FRANCHI Franchise Fee o
370MANAGEM Management Fees o o o o
380PAYROLL Payroll & Benefits o o o o
390MARKETI Advertising & o o o o
Marketing
400PROFESS Professional Fees o o o o
410GENERAL General and o o o o
Administrative
420ROOMS Room Expense - Housekeeping o
430MEALS Meal expense o
440OTHEREX Other Expenses o o o o
450GROUNDR Ground Rent o o o o
RESRV 490LEASING Leasing Commissions o
& CAPEX
500TENANTI Tenant Improvements o
510CAPEX Capital Expenditures o o o o
520EXCAPEX Extraordinary o o o o
Capital Expenditures
<PAGE>
DATA TYPES
-----------------------------------------------------
YTD Current Year - Year to Date
AN Annual (prior 12 months' data...fiscal
year - audited)
TR Trailing 12 months' data
UB Underwriting Base
Line
-----------------------------------------------------
STATEMENT TYPES
-----------------------------------------------------
BOR Borrower's Statement (as submitted)
ADJ Adjustments to Borrower's Statement
NOR Normalized Statement (to CMSA format)
-----------------------------------------------------
<PAGE>
EXHIBIT P
FORM OF COMPARATIVE FINANCIAL STATUS REPORT
ATTACHMENT B:
FINANCIAL FILE
SPECIFICATIONS
RECORD LAYOUT
--------------------------------------------------------------------------------
Fields: Trans From CMSA Loan Setup
ID File, Field #1
Loan # From CMSA Property
File, Field #2
Property From CMSA Property File, Field
ID #4, Example: 1001-001
YYYYMM Financial Statement
Beginning Date
YYYYMM Financial
Statement Ending Date
Data See attached
Type values
Stmt See attached
Type values
Category See attached
Code values
Amount Example: 999999.99 Enter
positive values except for
adjustments, contra accounts
or other negative numbers.
Key: Trans
ID
Loan #
Property CMSA Property
ID File, P4
YYYYMM Financial
Statement Ending
Date
Data
Type
Statement
Type
Category
Code
SAMPLE ASCII PRESENTATION
(PREFERRED)
--------------------------------------------------------------------
XX97D4, 12768-34,1001-001,199901,199903,YTD,NOR,010GROSRNT,999999.99
XX97D4, 12768-34,1001-001,199901,199903,YTD,NOR,020VACANCY,999999.99
XX97D4, 12768-34,1001-001,199901,199903,YTD,NOR,030BASERNT,999999.99
XX97D4, 12768-34,1001-001,199901,199903,YTD,NOR,160OTHERIN,999999.99
XX97D4, 12768-34,1001-001,199901,199903,YTD,NOR,310RETAXES,999999.99
XX97D4, 12768-34,1001-001,199901,199903,YTD,NOR,320PROPINS,999999.99
XX97D4, 12768-34,1001-001,199901,199903,YTD,NOR,330UTILITI,999999.99
XX97D4, 12768-34,1001-001,199901,199903,YTD,NOR,340REPAIRS,999999.99
XX97D4, 12768-34,1001-001,199901,199903,YTD,NOR,350JANITOR,999999.99
XX97D4, 12768-34,1001-001,199901,199903,YTD,NOR,370MANAGEM,999999.99
XX97D4, 12768-34,1001-001,199901,199903,YTD,NOR,380PAYROLL,999999.99
XX97D4, 12768-34,1001-001,199901,199903,YTD,NOR,390MARKETI,999999.99
XX97D4, 12768-34,1001-001,199901,199903,YTD,NOR,410GENERAL,999999.99
XX97D4, 12768-34,1001-001,199901,199903,YTD,NOR,440OTHEREX,999999.99
XX97D4, 12768-34,1001-001,199901,199903,YTD,NOR,500TENANTI,999999.99
XX97D4, 12768-34,1001-001,199901,199903,YTD,NOR,510CAPEX,999999.99
SAMPLE SPREADSHEET
PRESENTATION
TRANS LOAN # PROP BEGIN ENDING DATA STMT CATEGORY AMOUNT
ID ID YYYYMM YYYYMM TYPE TYPE
--------------------------------------------------------------------------------
XX97D4 12768-34 1001-001 199901 199903 YTD NOR 010GROSR 1000000
XX97D4 12768-34 1001-001 199901 199903 YTD NOR 020VACANCY 1000000
XX97D4 12768-34 1001-001 199901 199903 YTD NOR 030BASERNT 1000000
XX97D4 12768-34 1001-001 199901 199903 YTD NOR 160OTHERIN 1000000
XX97D4 12768-34 1001-001 199901 199903 YTD NOR 310RETAXES 1000000
XX97D4 12768-34 1001-001 199901 199903 YTD NOR 320PROPINS 1000000
XX97D4 12768-34 1001-001 199901 199903 YTD NOR 330UTILITI 1000000
XX97D4 12768-34 1001-001 199901 199903 YTD NOR 340REPAIRS 1000000
XX97D4 12768-34 1001-001 199901 199903 YTD NOR 350JANITOR 1000000
XX97D4 12768-34 1001-001 199901 199903 YTD NOR 370MANAGEM 1000000
XX97D4 12768-34 1001-001 199901 199903 YTD NOR 380PAYROLL 1000000
XX97D4 12768-34 1001-001 199901 199903 YTD NOR 390MARKETI 1000000
XX97D4 12768-34 1001-001 199901 199903 YTD NOR 410GENERAL 1000000
XX97D4 12768-34 1001-001 199901 199903 YTD NOR 440OTHEREX 1000000
XX97D4 12768-34 1001-001 199901 199903 YTD NOR 500TENANTI 1000000
XX97D4 12768-34 1001-001 199901 199903 YTD NOR 510CAPEX 1000000
XX97D4 12768-34 1001-002 199901 199903 YTD NOR 010GROSRNT 1000000
XX97D4 12768-34 1001-002 199901 199903 YTD NOR 020VACANCY 1000000
XX97D4 12768-34 1001-002 199901 199903 YTD NOR 030BASERNT 1000000
XX97D4 12768-34 1001-002 199901 199903 YTD NOR 160OTHERIN 1000000
XX97D4 12768-34 1001-002 199901 199903 YTD NOR 310RETAXES 1000000
XX97D4 12768-34 1001-002 199901 199903 YTD NOR 320PROPINS 1000000
XX97D4 12768-34 1001-002 199901 199903 YTD NOR 330UTILITI 1000000
XX97D4 12768-34 1001-002 199901 199903 YTD NOR 340REPAIRS 1000000
XX97D4 12768-34 1001-002 199901 199903 YTD NOR 350JANITOR 1000000
XX97D4 12768-34 1001-002 199901 199903 YTD NOR 370MANAGEM 1000000
XX97D4 12768-34 1001-002 199901 199903 YTD NOR 380PAYROLL 1000000
XX97D4 12768-34 1001-002 199901 199903 YTD NOR 390MARKETI 1000000
XX97D4 12768-34 1001-002 199901 199903 YTD NOR 410GENERAL 1000000
XX97D4 12768-34 1001-002 199901 199903 YTD NOR 440OTHEREX 1000000
XX97D4 12768-34 1001-002 199901 199903 YTD NOR 500TENANTI 1000000
XX97D4 12768-34 1001-002 199901 199903 YTD NOR 510CAPEX 1000000
Pro-sup # followed by
the Prop. Seq. #
Vacancy amounts must be
entered with a negative sign
<PAGE>
<TABLE>
EXHIBIT Q
FORM OF LOAN PERIODIC UPDATE FILE
EXHIBIT 1
BACM 2000-2
LOAN PERIODIC FILE
(DATA RECORD LAYOUT)
CROSS REFERENCED AS "L"
SPECIFICATION DESCRIPTION/COMMENTS
------------------------------------------------------------------------------------------------------------------------------------
Acceptable Media Types Magnetic Tape, Diskette, Electronic Transfer
Character Set ASCII
Field Delineation Comma
Density (Bytes-Per-Inch) 1600 or 6250
Magnetic Tape Label None (unlabeled)
Magnetic Tape Blocking Factor 10285 (17 records per block)
Physical Media Label Servicer Name; Data Type (Collection Period Data); Density
(Bytes-Per-Inch); Blocking Factor; Record Length
Return Address Label Required for return of physical media (magnetic tape or diskette)
<CAPTION>
FIELD FORMAT
FIELD NAME NUMBER TYPE EXAMPLE DESCRIPTION/COMMENTS
------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Transaction Id 1 AN XXX97001 Unique Issue Identification Mnemonic
Group Id 2 AN XXX9701A Unique Identification Number Assigned To Each Loan Group
Within An Issue
Loan Id 3 AN 00000000012345 Unique Servicer Loan Number Assigned To Each Collateral
Item In A Pool
Prospectus Loan Id 4 AN 123 Unique Identification Number Assigned To Each Collateral
Item In The Prospectus
Distribution Date 5 AN YYYYMMDD Date Payments Made To Certificateholders
Current Beginning Scheduled 6 Numeric 100000.00 Outstanding Sched Prin Bal at Beginning of current
Balance period that is part of the trust
Current Ending Scheduled Balance 7 Numeric 100000.00 Outstanding Sched Prin Bal at End of current period that
is part of the trust
Paid To Date 8 AN YYYYMMDD Date loan is paid through. One frequency < the date the
loan is due for next payment
Current Index Rate 9 Numeric 0.09 Index Rate Used In The Determination Of The Current
Period Gross Interest Rate
Current Note Rate 10 Numeric 0.09 Annualized Gross Rate Applicable To Calculate The
Current Period Scheduled Interest
Maturity Date 11 AN YYYYMMDD Date Collateral Is Scheduled To Make Its Final Payment
Servicer and Trustee Fee Rate 12 Numeric 0.00025 Annualized Fee Paid To The Servicer And Trustee
Fee Rate/Strip Rate 1 13 Numeric 0.00001 Annualized Fee/Strip Netted Against Current Note Rate =
Net Rate
Subservicer Fee Rate/Strip Rate 2 14 Numeric 0.00001 Annualized Fee/Strip Netted Against Current Note Rate =
Net Rate
Fee Rate/Strip Rate 3 15 Numeric 0.00001 Annualized Fee/Strip Netted Against Current Note Rate =
Net Rate
Fee Rate/Strip Rate 4 16 Numeric 0.00001 Annualized Fee/Strip Netted Against Current Note Rate =
Net Rate
Fee Rate/Strip Rate 5 17 Numeric 0.00001 Annualized Fee/Strip Netted Against Current Note Rate =
Net Rate
Net Rate 18 Numeric 0.0947 Annualized Interest Rate Applicable To Calculate The
Current Period Remittance Int.
Next Index Rate 19 Numeric 0.09 Index Rate Used In The Determination Of The Next Period
Gross Interest Rate
Next Note Rate 20 Numeric 0.09 Annualized Gross Interest Rate Applicable To Calc Of The
Next Period Sch. Interest
Next Rate Adjustment Date 21 AN YYYYMMDD Date Note Rate Is Next Scheduled To Change
Next Payment Adjustment Date 22 AN YYYYMMDD Date Scheduled P&I Amount Is Next Scheduled To Change
Scheduled Interest Amount 23 Numeric 1000.00 Scheduled Gross Interest Payment Due For The Current
Period that goes to the trust
Scheduled Principal Amount 24 Numeric 1000.00 Scheduled Principal Payment Due For The Current Period
that goes to the trust
Total Scheduled P&I Due 25 Numeric 1000.00 Scheduled Principal & Interest Payment Due For Current
Period for the trust
Neg am/Deferred Interest Amount 26 Numeric 1000.00 Negative Amortization/Deferred Interest Amount Due For
The Current Period
Unscheduled Principal Collections 27 Numeric 1000.00 Unscheduled Payments Of Principal Received During The
Related Collection Period
Other Principal Adjustments 28 Numeric 1000.00 Unscheduled Principal Adjustments For The Related
Collection Period
Liquidation/Prepayment Date 29 AN YYYYMMDD Date Unscheduled Payment Of Principal Received
Prepayment Penalty/Yld Maint 30 Numeric 1000.00 Additional Payment Req'd From Borrower Due To Prepayment
Rec'd Of Loan Prior To Maturity
Prepayment Interest Excess 31 Numeric 1000.00 Interest Shortfall or Excess as calculated by Servicer
(Shortfall) per the Trust documents
Liquidation/Prepayment Code 32 Numeric 1 See Liquidation/Prepayment Codes Legend
Most Recent ASER Amount 33 Numeric 1000.00 Appraisal Subordinated Entitlement Reduction - The
difference between a full advance and the reduced advance
is the ASER or as defined in the Trust documents
Blank 34 AN Blank Left blank on purpose. (Note: was previously Most Recent
ASER Date. Field not considered applicable to ASER.)
Cumulative ASER Amount 35 Numeric 1000.00 Cumulative Appraisal Subordinated Entitlement Reduction
Actual Balance 36 Numeric 100000.00 Outstanding Actual Principal Balance At The End Of The
Current Period
Total P&I Advance Outstanding 37 Numeric 1000.00 Outstanding P&I Advances At The End Of The Current Period
Total T&I Advance Outstanding 38 Numeric 1000.00 Outstanding Taxes & Insurance Advances At The End Of The
Current Period
Other Expense Advance Outstanding 39 Numeric 1000.00 Other Outstanding Advances At The End Of The Current
Period
Status of Loan 40 AN 1 See Status Of Loan Legend
In Bankruptcy 41 AN Y Bankruptcy Status Of Loan (If In Bankruptcy "Y", Else
"N")
Foreclosure Date 42 AN YYYYMMDD P27 - If Multiple properties have the same date then
print that date otherwise leave empty
REO Date 43 AN YYYYMMDD P28 - If Multiple properties have the same date then
print that date otherwise leave empty
Bankruptcy Date 44 AN YYYYMMDD Date Of Bankruptcy
Net Proceeds Received on 45 Numeric 100000.00 Net Proceeds Rec'd On Liquidation To Be Remitted to the
Liquidation Trust per the Trust Documents
Liquidation Expense 46 Numeric 100000.00 Expenses Associated With The Liq'n To Be Netted from the
Trust per the Trust Documents
Realized Loss to Trust 47 Numeric 10000.00 Liquidation Balance Less Net Liquidation Proceeds
Received (as defined in Trust documents)
Date of Last Modification 48 AN YYYYMMDD Date Loan Was Modified
Modification Code 49 Numeric 1 See Modification Codes Legend
Modified Note Rate 50 Numeric 0.09 Note Rate Loan Modified To
Modified Payment Rate 51 Numeric 0.09 Payment Rate Loan Modified To
Preceding Fiscal Year Revenue 52 Numeric 1000.00 P54 - If Multiple properties then sum the value, if
missing any then populate using the "DSCR Indicator
Legend" rule
Preceding Fiscal Year Operating 53 Numeric 1000.00 P55 - If Multiple properties then sum the value, if
Expenses missing any then populate using the "DSCR Indicator
Legend" rule
Preceding Fiscal Year NOI 54 Numeric 1000.00 P56 - If Multiple properties then sum the value, if
missing any then populate using the "DSCR Indicator
Legend" rule
Preceding Fiscal Year Debt Svc 55 Numeric 1000.00 P57 - If Multiple properties then sum the value, if
Amount missing any then populate using the "DSCR Indicator
Legend" rule
Preceding Fiscal Year DSCR (NOI) 56 Numeric 2.55 P58 - If Multiple properties populate using the "DSCR
Indicator Legend" rule. Preceding Fiscal Yr Debt Svc
Cvrge Ratio using NOI
Preceding Fiscal Year Physical 57 Numeric 0.85 P59 - If Multiple properties, Use weighted average by
Occupancy using the calculation [ Current Allocated % (Prop) *
Occupancy (Oper) ] for each Property, if missing any then
leave empty
Preceding Fiscal Year Financial 58 AN YYYYMMDD P53 - If Multiple properties and all the same then print
As of Date the date, if missing any then leave empty
Second Preceding Fiscal Year 59 Numeric 1000.00 P61 - If Multiple properties then sum the value, if
Revenue missing any then populate using the "DSCR Indicator
Legend" rule
Second Preceding Fiscal Year 60 Numeric 1000.00 P62 - If Multiple properties then sum the value, if
Operating Expenses missing any then populate using the "DSCR Indicator
Legend" rule
Second Preceding Fiscal Year NOI 61 Numeric 1000.00 P63 - If Multiple properties then sum the value, if
missing any then populate using the "DSCR Indicator
Legend" rule
Second Preceding Fiscal Year 62 Numeric 1000.00 P64 - If Multiple properties then sum the value, if
Debt Service Amount missing any then populate using the "DSCR Indicator
Legend" rule
Second Preceding Fiscal Year 63 Numeric 2.55 P65 - If Multiple properties populate using the "DSCR
DSCR (NOI) Indicator Legend" rule. Second Preceding Fiscal Year
Debt Service Coverage Ratio using NOI
Second Preceding Fiscal Year 64 Numeric 0.85 P66 - If Multiple properties, Use weighted average by
Physical Occupancy using the calculation [ Current Allocated % (Prop) *
Occupancy (Oper) ] for each Property, if missing any then
leave empty
Second Preceding Fiscal Year 65 AN YYYYMMDD P60 - If Multiple properties and all the same then print
Financial As of Date the date, if missing any then leave empty
Most Recent Revenue 66 Numeric 1000.00 P68 - If Multiple properties then sum the value, if
missing any then populate using the "DSCR Indicator
Legend" rule
Most Recent Operating Expenses 67 Numeric 1000.00 P69 - If Multiple properties then sum the value, if
missing any then populate using the "DSCR Indicator
Legend" rule
Most Recent NOI 68 Numeric 1000.00 P70 - If Multiple properties then sum the value, if
missing any then populate using the "DSCR Indicator
Legend" rule
Most Recent Debt Service Amount 69 Numeric 1000.00 P71 - If Multiple properties then sum the value, if
missing any then populate using the "DSCR Indicator
Legend" rule
Most Recent DSCR (NOI) 70 Numeric 2.55 P72 - If Multiple properties populate using the "DSCR
Indicator Legend" rule. Most Recent Debt Service
Coverage Ratio using NOI
Most Recent Physical Occupancy 71 Numeric 0.85 P29 - If Multiple properties, Use weighted average by
using the calculation [ Current Allocated % (Prop) *
Occupancy (Oper) ] for each Property, if missing any then
leave empty
Most Recent Financial As of 72 AN YYYYMMDD P73 - If Multiple properties and all the same then print
Start Date the date, if missing any then leave empty
Most Recent Financial As of End 73 AN YYYYMMDD P74 - If Multiple properties and all the same then print
Date the date, if missing any then leave empty
Most Recent Appraisal Date 74 AN YYYYMMDD P24 - If Multiple properties and all the same then print
the date, if missing any then leave empty
Most Recent Appraisal Value 75 Numeric 100000.00 P25 - If Multiple properties then sum the value, if
missing any then leave empty
Workout Strategy Code 76 Numeric 1 See Workout Strategy Codes Legend
Most Recent Special Servicer 77 AN YYYYMMDD Date Transferred To The Special Servicer
Transfer Date
Most Recent Master Servicer 78 AN YYYYMMDD Date Returned To The Master Servicer or Primary Servicer
Return Date
Date Asset Expected to Be 79 AN YYYYMMDD P26 - If Multiple properties then print the latest date
Resolved or Foreclosed from the affiliated properties. If in Foreclosure -
Expected Date of Foreclosure and if REO - Expected Sale
Date.
Blank 80 AN Blank Left blank on purpose. (Note: was previously Year
Renovated. Use the Property File field 15 instead)
Current Hyper Amortizing Date 81 AN YYYYMMDD S79 - Current Anticipated Repayment Date. Date will be
the same as setup file unless the loan is modified and a
new date assigned
Most Recent Financial Indicator 82 AN T or Y P75 - T= Trailing 12 months Y = Year to Date, Check Start
& End Date Applies to field L66 to L73. If Multiple
properties and all the same then print the value, if
missing any or if the values are not the same, then leave
empty
Last Setup Change Date 83 AN YYYYMMDD S82 - Distribution Date that information changed last in
the setup file by loan
Last Loan Contribution Date 84 AN YYYYMMDD Date the loan was contributed
Last Property Contribution Date 85 AN YYYYMMDD P67 - Date the latest property or properties were
contributed. For Multiple properties print the latest
date from the affiliated properties
Number of Properties 86 Numeric 13.00 S54 - The Number of Properties Underlying the Mortgage
Loan
Preceding Year DSCR Indicator 87 AN Text Flag used to explain how the DSCR was calculated when
there are multiple properties. See DSCR Indicator
Legend.
Second Preceding Year DSCR 88 AN Text Flag used to explain how the DSCR was calculated when
Indicator there are multiple properties. See DSCR Indicator
Legend.
Most Recent DSCR Indicator 89 AN Text Flag used to explain how the DSCR was calculated when
there are multiple properties. See DSCR Indicator
Legend.
NOI/NCF Indicator 90 AN Text Indicates how NOI or Net Cash Flow was calculated should
be the same for each financial period. See NOI/NCF
Indicator Legend. P84 - If Multiple Properties and all
the same then print value, if missing any or if the
values are not the same, then leave empty.
Date of Assumption 91 AN YYYYMMDD Date the loan last assumed by a new borrower- empty if
never assumed
Preceding Fiscal Year NCF 92 Numeric 1000.00 P78 - Preceding Fiscal Year Net Cash Flow related to
Financial As of Date L58. If Multiple properties then
sum the value, if missing any then populate using the
"DSCR Indicator Legend" rule
Preceding Fiscal Year DSCR (NCF) 93 Numeric 2.55 P79 - Preceding Fiscal Yr Debt Service Coverage Ratio
using NCF related to Financial As of Date L58. If
Multiple properties populate using the "DSCR Indicator
Legend" rule.
Second Preceding Fiscal Year NCF 94 Numeric 1000.00 P80 - Second Preceding Fiscal Year Net Cash Flow related
to Financial As of Date L65. If Multiple properties
then sum the value, if missing any then populate using
the "DSCR Indicator Legend" rule
Second Preceding Fiscal Year 95 Numeric 2.55 P81 - Second Preceding Fiscal Year Debt Service Coverage
DSCR (NCF) Ratio using Net Cash Flow related to Financial As of Date
L65. If Multiple properties populate using the "DSCR
Indicator Legend" rule.
Most Recent NCF 96 Numeric 1000.00 P82 - Most Recent Net Cash Flow related to Financial As of
Ending Date L73. If Multiple properties then sum the
value, if missing any then populate using the "DSCR
Indicator Legend" rule
Most Recent DSCR (NCF) 97 Numeric 1000.00 P83 - Most Recent Debt Service Coverage Ratio using Net
Cash Flow related to Financial As of Ending Date L73. If
Multiple properties populate using the "DSCR Indicator
Legend" rule.
Defeasance Status 98 AN Text See Defeasance Status Legend
ARA Amount 99 Numeric 1000.00 Appraisal Reduction Amount - Excess of the principal
balance over the defined appraisal % or as defined in the
trust documents
ARA Date 100 AN YYYYMMDD Date of appraisal used to calculate ARA
Credit Tenant Lease 101 AN Y S87 - Y=Yes, N=No
Actual Payment Date 102 AN YYYYMMDD Actual Date Borrower made payment
Actual Principal Payment 103 Numeric 1000.00 Gross Principal Payment Amount posted to the Borrowers
Loan during the Current Rptg Period
Actual Interest Payment 104 Numeric 1000.00 Gross Interest Payment Amount posted to the Borrowers
Loan during the Current Rptg Period
Delinquent Loan Comments 105 AN Text Used in the Delinquent Loan Status Report
Watchlist Codes 106 AN Text Used in Watchlist Report, Codes developed by Servicer in
conjunction with PSA
Watchlist Comments 107 AN Text Used in Watchlist Report further describing the cause
for addition to the report and action to cure.
Excess Rate 108 Numeric 0.09 Incremental increase in the Mortgage Rate for such
Mortgage Loan resulting from the Anticipated Repayment
Date. (Post ARD Additional Interest Rate)
Excess Amount 109 Numeric 100000.00 All interest accrued on the Principal balance of such
ARD Loan at the Post ARD Additional Interest Rate
Default Interest Rate 110 Numeric 0.09 Rate charged to derive Default Interest Amount
Default Interest Amount 111 Numeric 0.09 Default Interest Amount collected from Borrower
Late Payment Fees 112 Numeric 100000.00 Late Charges collected from Borrower
</TABLE>
WORKOUT STRATEGY STATUS OF MORTGAGE LOAN
CODE LEGEND LEGEND
--------------------------------------------------------------------------------
1 Modification A Payment Not Received But Still In Grace Period
2 Foreclosure B Late Payment But Less Than 30 days Delinquent
3 Bankruptcy 0 Current
4 Extension 1 30-59 Days Delinquent
5 Note Sale 2 60-89 Days Delinquent
6 DPO 3 90+ Days Delinquent
7 REO 4 Assumed Scheduled Payment (Performing Matured Balloon)
8 Resolved 7 Foreclosure
9 Pending Return 9 REO
to Master
Servicer
10 Deed in Lieu Of
Foreclosure
11 Full Payoff
12 Reps and
Warranties
13 Other or TBD
BACM 2000-2
LOAN PERIODIC FILE
(DATA RECORD LAYOUT)
CROSS REFERENCED AS "L"
LIQUIDATION/PREPAYMENT CODE
LEGEND
-------------------------------------------------------------------------------
1 Partial Liq'n (Curtailment)
2 Payoff Prior to Maturity
3 Disposition
4 Repurchase/Substitution
5 Full Payoff At Maturity
6 DPO
7 Liquidation
8 Payoff w/penalty
9 Payoff w/yield Maintenance
10 Curtailment w/Penalty
11 Curtailment w/Yield Maintenance
DEFEASANCE STATUS
LEGEND
-------------------------------------------------------------------------------
p Partial Defeasance
F Full Defeasance
N No Defeasance Occurred
X Defeasance not Allowable
MODIFICATION CODE
LEGEND
-------------------------------------------------------------------------------
1 Maturity Date Extension
2 Amortization Change
3 Principal Write-Off
4 Combination
DSCR INDICATOR
LEGEND
-------------------------------------------------------------------------------
P Partial - Not all properties received financials, servicer to leave
empty
A Average - Not all properties received financials, servicer allocates
Debt Service only to properties where financials are received.
F Full - All Statements Collected for all properties
W Worst Case - Not all properties received financials, servicer allocates
100% of Debt Service to all properties where financials are received.
N None Collected - no financials were received
C Consolidated - All properties reported on one "rolled up" financial
from the borrower
NOI/NCF INDICATOR
LEGEND
CMSA Calculated using CMSA standard
PSA Calculated using a definition given in the PSA
U/W Calculated using the underwriting method
(DEVELOPED BY CONTRACT) WATCHLIST CODES
LEGEND
PENDING FINALIZATION OF THE PSA
<PAGE>
EXHIBIT R
FORM OF HISTORICAL MODIFICATION REPORT
<TABLE>
CMSA INVESTOR REPORTING PACKAGE
HISTORICAL LOAN MODIFICATION REPORT
AS OF ______________
(LOAN LEVEL REPORT)
<CAPTION>
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
S4 S57 S58 L49 L48 L7* L7* L50*
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
Balance When Balance at
Mod/ Extension Effective Sent to the Effective #Mths
Prospectus Extension per Docs Date of Special Date of Old for Rate
ID City State Flag or Servicer Modification Servicer Modification Rate Change
====================================================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
THIS REPORT IS HISTORICAL
------------------------------------------------------------------------------------------------------------------------------------
Information is as of modification. Each line should not change in the future. Only new modifications should be added.
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
TOTAL FOR ALL LOANS:
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<TABLE>
<CAPTION>
TABLE (CONTINUED)
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
S4 L50* L25* L25* L11* L11* L47
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
Total # (1) (2) Est.
Mths for Realized Future Interest
Prospectus New Old New Old New Change Loss to Loss to Trust $
ID Rate P&I P&I Maturity Maturity of Mod Trust $ (Rate Reduction) COMMENT
====================================================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
THIS REPORT IS HISTORICAL
------------------------------------------------------------------------------------------------------------------------------------
Information is as of modification. Each line should not change in the future. Only new modifications should be added.
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
TOTAL FOR ALL LOANS:
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
* The information in these columns is from a particular point in time and should
not change on this report once assigned.
Future modifications done on the same loan are additions to the report.
(1) Actual principal loss taken by bonds
(2) Expected future loss due to a rate reduction. This is just an estimate calculated at the time of the modification.
------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
EXHIBIT S
FORM OF HISTORICAL LIQUIDATION REPORT
<TABLE>
CMSA INVESTOR REPORTING PACKAGE
HISTORICAL LIQUIDATION REPORT
(REO-SOLD, DISCOUNTED PAYOFF OR NOTE SALE)
AS OF _______________
(LOAN LEVEL REPORT)
<CAPTION>
------------------------------------------------------------------------------------------------------------------------------------
S4 S55 S61 S57 S58 L75 L29 L45 L7
------------------------------------------------------------------------------------------------------------------------------------
(c)=b/a (a) (b) (d) (e)
------------------------------------------------------------------------------------------------------------------------------------
LATEST
% RECEIVED APPRAISAL EFFECTIVE NET AMT ENDING
PROSPECTUS PROPERTY PROPERTY FROM OR BROKERS DATE OF SALES RECEIVED SCHEDULED
LOAN ID NAME TYPE CITY STATE LIQUIDATION OPINION LIQUIDATION PRICE FROM SALE BALANCE
------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
THIS REPORT IS HISTORICAL
All information is from the liquidation date and does not need to be updated.
------------------------------------------------------------------------------------------------------------------------------------
TOTAL ALL LOANS:
CURRENT MONTH ONLY:
------------------------------------------------------------------------------------------------------------------------------------
(h) Servicing Fee Expense includes fees such as Liquidation or Disposiotion fees charged by the Special Servicer.
------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
<TABLE>
CMSA INVESTOR REPORTING PACKAGE
HISTORICAL LIQUIDATION REPORT
(REO-SOLD, DISCOUNTED PAYOFF OR NOTE SALE)
AS OF _______________
(LOAN LEVEL REPORT)
(continued)
<CAPTION>
------------------------------------------------------------------------------------------------------------------------------------
S4 L37 L39+L38 L47
------------------------------------------------------------------------------------------------------------------------------------
(f) (g) (h) (i)= (k) (m) (n)=k+m (o)=n/e
d-(f+g+h)
------------------------------------------------------------------------------------------------------------------------------------
TOTAL T & I DATE OF
AND OTHER DATE MINOR
TOTAL P&I EXPENSE SERVICING LOSS ADJ TOTAL LOSS LOSS % OF
PROSPECTUS ADVANCE ADVANCE FEES NET REALIZED PASSED MINOR ADJ PASSED WITH SCHEDULED
LOAN ID OUTSTANDING OUTSTANDING EXPENSE PROCEEDS LOSS THRU TO TRUST THRU ADJUSTMENT BALANCE
------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
THIS REPORT IS HISTORICAL
All information is from the liquidation date and does not need to be updated.
------------------------------------------------------------------------------------------------------------------------------------
TOTAL ALL LOANS:
CURRENT MONTH ONLY:
------------------------------------------------------------------------------------------------------------------------------------
(h) Servicing Fee Expense includes fees such as Liquidation or Disposiotion fees charged by the Special Servicer.
------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
<TABLE>
EXHIBIT T
FORM OF CMSA LOAN SET UP FILE
BACM 2000-2
LOAN SETUP FILE
(DATA RECORD LAYOUT)
CROSS REFERENCED AS "S"
SPECIFICATION DESCRIPTION/COMMENTS
------------------------------------------------------------------------------------------------------------------------------------
Acceptable Media Types Magnetic Tape, Diskette, Electronic Transfer
Character Set ASCII
Field Delineation Comma
Density (Bytes-Per-Inch) 1600 or 6250
Magnetic Tape Label None (unlabeled)
Magnetic Tape Blocking Factor 10285 (17 records per block)
Physical Media Label Servicer Name; Data Type (Collection Period Data); Density
(Bytes-Per-Inch); Blocking Factor; Record Length
Return Address Label Required for return of physical media (magnetic tape or diskette)
<CAPTION>
FIELD FORMAT
FIELD NAME NUMBER TYPE EXAMPLE DESCRIPTION/COMMENTS
------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Transaction Id 1 AN XXX97001 Unique Issue Identification Mnemonic
Group Id 2 AN XXX9701A Unique Identification Number Assigned To Each Loan
Group Within An Issue
Loan Id 3 AN 00000000012345 Unique Servicer Loan Number Assigned To Each
Collateral Item In A Pool
Prospectus Loan Id 4 AN 123 Unique Identification Number Assigned To Each
Collateral Item In The Prospectus
Original Note Amount 5 Numeric 1000000.00 The Mortgage Loan Balance At Inception Of The Note
Original Term Of Loan 6 Numeric 240 Original Number Of Months Until Maturity Of Loan
Original Amortization Term 7 Numeric 360 Original Number Of Months Loan Amortized Over
Original Note Rate 8 Numeric 0.095 The Note Rate At Inception Of The Note
Original Payment Rate 9 Numeric 0.095 Original Rate Payment Calculated On
First Loan Payment Due Date 10 AN YYYYMMDD First Payment Date On The Mortgage Loan
Grace Days Allowed 11 Numeric 10 Number Of Days From Due Date Borrower Is Permitted To
Remit Payment
Interest Only (Y/N) 12 AN Y Y=Yes, N=No
Balloon (Y/N) 13 AN Y Y=Yes, N=No
Interest Rate Type 14 Numeric 1 1=Fixed, 2=Arm, 3=Step, 9=Other
Interest Accrual Method Code 15 Numeric 1 1=30/360, 2=Actual/365, 3=Actual/360, 4=Actual/Actual,
5=Actual/366, 6=Simple, 7=78's
Interest in Arrears (Y/N) 16 AN Y Y=Yes, N=No
Payment Type Code 17 Numeric 1 See Payment Type Code Legend
Prepayment Lock-out End Date 18 AN YYYYMMDD Date After Which Loan Can Be Prepaid
Yield Maintenance End Date 19 AN YYYYMMDD Date After Which Loan Can Be Prepaid Without Yield
Maintenance
Prepayment Premium End Date 20 AN YYYYMMDD Date After Which Loan Can Be Prepaid Without Penalty
Prepayment Terms Description 21 AN Text Should reflect the information in Annex A or use the
format of LO(36), YM(28), 7(12), O(3). If manually
derived, the Cutoff Date should be the start date for
period counting.
ARM Index Code 22 AN A See Arm Index Code Legend
First Rate Adjustment Date 23 AN YYYYMMDD Date Note Rate Originally Changed
First Payment Adjustment Date 24 AN YYYYMMDD Date Payment Originally Changed
ARM Margin 25 Numeric 0.025 Rate Added To Index Used In The Determination Of The
Gross Interest Rate
Lifetime Rate Cap 26 Numeric 0.15 Maximum Rate That The Borrower Must Pay On An Arm Loan
Per The Loan Agreement
Lifetime Rate Floor 27 Numeric 0.05 Minimum Rate That The Borrower Must Pay On An Arm Loan
Per The Loan Agreement
Periodic Rate Increase Limit 28 Numeric 0.02 Maximum Periodic Increase To The Note Rate Allowed Per
The Loan Agreement
Periodic Rate Decrease Limit 29 Numeric 0.02 Minimum Periodic Decrease To The Note Rate Allowed Per
The Loan Agreement
Periodic Pay Adjustment Max-% 30 Numeric 0.03 Max Periodic % Increase To The P&I Payment Allowed Per
The Loan Agreement
Periodic Pay Adjustment Max-$ 31 Numeric 5000.00 Max Periodic Dollar Increase To The P&I Payment
Allowed Per The Loan Agreement
Payment Frequency 32 Numeric 1 1=Monthly, 3=Quarterly, 6=Semi-Annually, 12=Annually...
Rate Reset Frequency 33 Numeric 1 1=Monthly, 3=Quarterly, 6=Semi-Annually, 12=Annually,
365=Daily
Pay Reset Frequency 34 Numeric 1 1=Monthly, 3=Quarterly, 6=Semi-Annually, 12=Annually,
365=Daily
Rounding Code 35 Numeric 1 Rounding Method For Sum Of Index Plus Margin (See
Rounding Code Legend)
Rounding Increment 36 Numeric 0.00125 Used In Conjunction With Rounding Code
Index Look Back In Days 37 Numeric 45 Use Index In Effect X Days Prior To Adjustment Date
Negative Amortization Allowed 38 AN Y Y=Yes, N=No
(Y/N)
Max Neg Allowed (% Of Orig Bal) 39 Numeric 0.075 Max Lifetime % Increase to the Original Balance
Allowed Per The Loan Agreement
Maximum Negate Allowed ($) 40 Numeric 25000.00 Max Lifetime Dollar Increase to the Original Balance
Allowed Per The Loan Agreement
Remaining Term At Contribution 41 Numeric 240 Remaining Number Of Months Until Maturity Of Loan At
Cutoff
Remaining Amort Term At 42 Numeric 360 Remaining Number Of Months Loan Amortized Over At
Contribution Cutoff
Maturity Date At Contribution 43 AN YYYYMMDD The Scheduled Maturity Date Of The Mortgage Loan At
Contribution
Scheduled Principal Balance At 44 Numeric 1000000.00 The Scheduled Principal Balance Of The Mortgage Loan
Contribution At Contribution
Note Rate At Contribution 45 Numeric 0.095 Cutoff Annualized Gross Interest Rate Applicable To
The Calculation Of Scheduled Interest
Servicer And Trustee Fee Rate 46 Numeric 0.00025 Cutoff Annualized Fee Paid To The Servicer And Trustee
Fee Rate / Strip Rate 1 47 Numeric 0.00001 Cutoff Annualized Fee/Strip Netted Against Current
Note Rate = Net Rate
Subservicer Fee Rate / Strip 48 Numeric 0.00001 Cutoff Annualized Fee/Strip Netted Against Current
Rate 2 Note Rate = Net Rate
Fee Rate / Strip Rate 3 49 Numeric 0.00001 Cutoff Annualized Fee/Strip Netted Against Current
Note Rate = Net Rate
Fee Rate / Strip Rate 4 50 Numeric 0.00001 Cutoff Annualized Fee/Strip Netted Against Current
Note Rate = Net Rate
Fee Rate / Strip Rate 5 51 Numeric 0.00001 Cutoff Annualized Fee/Strip Netted Against Current
Note Rate = Net Rate
Net Rate At Contribution 52 Numeric 0.0947 Cutoff Annualized Interest Rate Applicable To The
Calculation Of Remittance Interest
Periodic P&I Payment At 53 Numeric 3000.00 The Periodic Scheduled Principal & Interest Payment at
Contribution Contribution
# Of Properties at Contribution 54 Numeric 13 L86 - The Number Of Properties Underlying The Mortgage
Loan
Property Name 55 AN Text P7 - If Multiple properties print "Various"
Property Address 56 AN Text P8 - If Multiple properties print "Various"
Property City 57 AN Text P9 - If Multiple properties have the same city then
print the city, otherwise print "Various". Missing
information print "Incomplete"
Property State 58 AN Text P10 - If Multiple properties have the same state then
print the state, otherwise print "XX" to represent
various. Missing information print "ZZ"
Property Zip Code 59 AN Text P11 - If Multiple properties have the same zip code
then print the zip code, otherwise print "Various".
Missing information print "Incomplete"
Property County 60 AN Text P12 - If Multiple properties have the same county then
print the county, otherwise print "Various". Missing
information print "Incomplete"
Property Type Code 61 AN MF P13 - If Multiple properties have the same property
type code then print the property code, otherwise
print "XX" to represent various. Missing information
print "ZZ"
Net Square Feet At Contribution 62 Numeric 25000 P16 - For Multiple properties, if all the same
Property Type, sum the values, if missing any leave
empty
# Of Units/Beds/Rooms At 63 Numeric 75 P17 - For Multiple properties, if all the same
Contribution Property Type, sum the values, if missing any leave
empty
Year Built 64 AN YYYY P14 - If Multiple properties have the same Year Built
then print Year Built else leave empty
NOI At Contribution 65 Numeric 100000.00 P47 - If Multiple properties sum the values, if
missing any then populate using the "DSCR Indicator
Legend" rule. Should match the prospectus if
available.
DSCR (NOI) At Contribution 66 Numeric 2.11 P48 - If Multiple properties populate using the "DSCR
Indicator Legend" rule. DSCR At Contribution using
NOI. Should match the prospectus if available.
Appraisal Value At Contribution 67 Numeric 1000000.00 P49 - If Multiple properties sum the values, if
missing any then leave empty
Appraisal Date At Contribution 68 AN YYYYMMDD P50 - If Multiple properties and all the same then
print the date, if missing any then leave empty
Physical Occupancy At 69 Numeric 0.88 P51 - If Multiple properties, Use weighted average by
Contribution using the calculation [ Current Allocated % (Prop) *
Occupancy (Oper) ] for each Property, if missing one
then leave empty
Revenue At Contribution 70 Numeric 100000.00 P45 - If Multiple properties then sum the value, if
missing any then populate using the "DSCR Indicator
Legend" rule. Should match the prospectus if
available.
Operating Expenses At 71 Numeric 100000.00 P46 - If Multiple properties then sum the value, if
Contribution missing any then populate using the "DSCR Indicator
Legend" rule. Should match the prospectus if
available.
Contribution Financials As Of 72 AN YYYYMMDD P44 - If Multiple properties and all the same then
Date print the date, if missing any then leave empty
Recourse (Y/N) 73 AN Y Y=Yes, N=No
Ground Lease (Y/S/N) 74 AN Y Y=Yes, S=Subordinate, N= No ground lease, P22 - If
Multiple properties and any one property is "Y" or "S"
print "Y"
Cross-Collateralized Loan 75 AN Text P6 - All Loans With The Same Value Are Crossed, For
Grouping example: "X02-1" would be populated in this field for
all related loans, "X02-2" would be populated for the
next group of related loans.
Collection Of Escrows (Y/N) 76 AN Y Y=Yes, N=No - Referring to Taxes and Insurance
Collection Of Other Reserves 77 AN Y Y=Yes, N=No - Referring to Reserves other than Taxes
(Y/N) and Insurance. If any property has a value > 0 in
P23, this field should be "Y"
Lien Position At Contribution 78 Numeric 1 1=First, 2=Second...
Hyper Amortizing Begin Date 79 AN YYYYMMDD L81 - Date used to track Anticipated Repayment Date
Loans
Defeasance Option Start Date 80 AN YYYYMMDD Date loan can start defeasance
Defeasance Option End Date 81 AN YYYYMMDD Date that defeasance ends
Last Setup Change Date 82 AN YYYYMMDD L83 - Distribution Date that the information was last
changed by loan
NCF At Contribution 83 Numeric 100000.00 P76 - If Multiple properties sum the values, if
missing any then populate using the "DSCR Indicator
Legend" rule. Net Cash Flow At Contribution. Should
match the prospectus if available.
DSCR (NCF) At Contribution 84 Numeric 2.11 P77 - If Multiple properties populate using the "DSCR
Indicator Legend" rule. DSCR At Contribution using NCF
to calculate. Should match the prospectus if
available.
DSCR Indicator at Contribution 85 AN Text Flag used to explain how the DSCR was calculated when
there are multiple properties. See DSCR Indicator
Legend.
Loan Contributor to 86 AN Text Name of entity ultimately responsible for the reps and
Securitization warranties of the loan contributed
Credit Tenant Lease 87 AN Y L101 - Y=Yes, N=No
</TABLE>
<PAGE>
BACM 2000-2
LOAN SETUP FILE
-------------------------------------------------------------------------------
1 Unrounded
2 Nearest Percentage Increment
3 Up To Nearest Percentage Increment
4 Down to Nearest Percentage Increment
PROPERTY TYPES CODE
LEGEND
-------------------------------------------------------------------------------
MF Multifamily
RT Retail
HC Health Care
IN Industrial
WH Warehouse
MH Mobile Home Park
OF Office
MU Mixed Use
LO Lodging
SS Self Storage
OS Other Securities
ARM INDEX CODE
LEGEND
-------------------------------------------------------------------------------
A 11 FHLB COFI (1 Month)
B 11 FHLB COFI (6 Month)
C 1 Year CMT Weekly Average Treasury
D 3 Year CMT Weekly Average Treasury
E 5 Year CMT Weekly Average Treasury
F Wall Street Journal Prime Rate
G 1 Month LIBOR
H 3 Month LIBOR
I 6 Month LIBOR
J National Mortgage Index Rate
All Others Use Short Text Description
PAYMENT TYPE CODE
LEGEND
-------------------------------------------------------------------------------
1 Fully Amortizing
2 Amortizing Balloon
3 Interest Only/Balloon
4 Interest Only/Amortizing
5 Interest Only/Amortizing/Balloon
6 Principal Only
7 Hyper-Amortization
9 Other
DSCR INDICATOR
LEGEND
-------------------------------------------------------------------------------
P Partial - Not all properties received financials, servicer to leave
empty
A Average - Not all properties received financials, servicer allocates
Debt Service only to properties where financials are received.
F Full - All Statements Collected for all properties
W Worst Case - Not all properties received financials, servicer allocates
100% of Debt Service to all properties where financials are received.
N None Collected - no financials were received
C Consolidated - All properties reported on 1 "rolled up" financial from
the borrower
<PAGE>
EXHIBIT U
FORM OF DELINQUENT LOAN STATUS REPORT
EXHIBIT 3
SUB-SERVICER COLLECTION ACCOUNT
RECONCILIATION
BACM
2000-2
FROM MM/DD/YYYY TO AND INCLUDING
MM/DD/YYYY Account #
-------------------------------------------------------------------------------
BEGINNING BALANCE $0.00
-----------------
Collections:
------------
DELINQUENT PAYMENT $0.00
PAYMENTS FOR CURRENT DUE PERIODS $0.00
(Includes net liquidation proceeds $0.00
& prepayments)
PAYMENTS FOR FUTURE DUE PERIODS $0.00
OTHER: $0.00
ESCROW $0.00
SUBSERVICER ADVANCES $0.00
LIQUIDATION PROCEEDS- To be applied to $0.00
Servicer Advances
LATE FEES $0.00
PREPAYMENT PREMIUMS $0.00
EXCESS INTEREST $0.00
DEFAULT INTEREST $0.00
UNAPPLIED FUNDS $0.00
LOANS IN PROCESS $0.00
INVESTMENT INCOME - Due to Subservicer $0.00
-----------------
TOTAL COLLECTIONS $0.00
=================
DISBURSEMENTS:
------------------
TRANSFER TO ESCROW $0.00
TRANSFER TO RESERVE ACCOUNT $0.00
SUBSERVICER FEES $0.00
MASTER SERVICER REMITTANCE $0.00
PRINCIPAL ADVANCE REIMBURSEMENTS $0.00
INTEREST ADVANCE REIMBURSEMENTS $0.00
SERVICER ADVANCE REIMBURSEMENTS $0.00
ADVANCE INTEREST (Due and collected) $0.00
OTHER SERVICER $0.00
INCOME
INVESTMENT INCOME - Due Subservicer $0.00
-----------------
TOTAL DISBURSEMENTS $0.00
=================
ENDING BALANCE $0.00
BALANCE PER BANK STATEMENT DIFFERENCE $0.00
-----------------
$0.00
=================
EXPLANATION OF DIFFERENCE:
Report should be supported by
copy of bank statement
<PAGE>
SCHEDULE I
MORTGAGE LOAN SCHEDULE
<TABLE>
<CAPTION>
Sequence Loan
Number Number Property Name Street Address
-----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
B1 51642 Towngate Community Shopping Center 12625 Frederick Street
B2.1 52458 BVT-Publix at Powder Springs Shopping Center 3701-3753 New MacLand Road
B2.2 52458 BVT-Parkway Centre 7600 Schomburg Road
B2.3 52458 BVT-Deltona Landings Shopping Center 915 Doyle Road
B2.4 52458 BVT-Kingwood Glen Shopping Center 19250 W. Lake Houston Parkway
B2 52458 BVT Investment Portfolio Loan Roll-Up
B3 52314 Epps Village Shopping Center 1720 Epps Bridge Road
B4 51826 Yorba Canyon Center 21430-21580 Yorba Linda Boulevard
H1 180602 Gateway Village Shopping Center 5932, 5940, 5960, 6008, 6020 & 6070 West Bell Road
B5 51835 East Lake Woodlands 3400 East Lake Road
B6 52050 Home Base-Spokane, WA 9718 E. Sprague Ave
B7 51903 Fielder Plaza Shopping Center 1701 West Randol Mill Road and 1112 North Fielder Road
H2 163162 Clubhouse Plaza 31271-31371 Niguel Road
B8 52070 Arrow Center 412 W. Arrow Highway
B9 51656 Keystone Heights Village Shopping Center 7380 State Road 100 at Sunrise Blvd
B10 51653 Las Flores Plaza 30592 Santa Margarita Parkway
H3 278350 Willowbrook Court Center 7885 FM 1960 West
B11 51591 Perry Crossroads Shopping Center 1011-1033 St. Patricks Dr
B12 51619 Glenoaks Plaza 401 South Glenoaks Blvd.
B13 51305 North Mesa Plaza 454 North Lindsay Road and 2644-2750 E. University Drive
B14 51592 Willow Lake Shopping Center 2907 Watson Blvd.
B15 52649 Sparta Crossing 281 North Spring Street
B16 52130 CVS Pharmacy at Village Marketplace Shopping Center 13180 Midlothian Turnpike
B17 51597 The Groves Restaurant 1330 West 75th Street
B18 51566 Ranson Square Shopping Center Route 9 and Ambrose Drive
H4 281595 Southlake Oaks Shopping Center Phase II 480 West Southlake Boulevard
B19 52347 CVS Pharmacy- Murrells Inlet Store 2736 3710 Highway 17 By-Pass
B20 51852 Baldwin Hills Shopping Center 5060-5080 Rodeo Drive
B21 51393 Fairway Market 520 E. Tulare Ave.
B22 51394 Fairway Center 1845 Dinuba Blvd.
H5 277025 Sanctuary Cove Apartments 700 & 900 Sanctuary Cove Drive
H6 277035 Weston Place Apartments 16000 South Post Road
H7 277070 Durango Canyon South Apartments 4515 South Durango Drive
H8 277060 Durango Canyon North Apartments 8620 Peace Way
B23 52027 Meridian Corners Apartments 1440 East Broadway Rd
B24 52542 Silverado Apartments 3750 S. Arville Street
B25 52370 Rio Apartments 8801-8871 Fontainebleau Boulevard
B26 51963 Sonnet Cove Apartments 495 Laketower Drive
B27 52097 Verona Senior Citizens' Apartments 100 Hillwood Terrace
B28 52096 Duval Villa Apartments 4305 Duval Street
B29 51836 Pinewood Apartments 1855 East Rose Ave
B30 52024 Forest Hills Apartments 1817 West Call Street
B31 51580 Oakview Terrace Apartments SEC Urbandale Avenue/ 30th Street
B32 50221 Brookside Village 1902 Brady Dr
H9 513561 Edgecliff Village & Chapel Creek Various
B33 52257 Woodbridge Manor Apartments 3140 East Paris Avenue, SE
B34 51823 Tanglewood North Apartments 1020 East 45th Street
B35 51641 Hickory Hills Townhomes Phase II 22507 Iverson Drive
B36 51920 Art Museum Apartments 1706 Art Museum Drive
B37.1 52149 B & V Apartment Portfolio-155 NW 10th St. 155 NW 10th St.
B37.2 52149 B & V Apartment Portfolio-1223 NE 1st Ave. 1223 NE 1st Ave.
B37.3 52149 B & V Apartment Portfolio-929 NW 2nd St. 929 NW 2nd St.
B37.4 52149 B & V Apartment Portfolio-67 NE 9th Court 67 NE 9th Court
B37.5 52149 B & V Apartment Portfolio-930 NW 1st Ave. 930 NW 1st Ave.
B37.6 52149 B & V Apartment Portfolio-938 NW 1st Ave. 938 NW 1st Ave.
B37.7 52149 B & V Apartment Portfolio-55 NE 9th Court 55 NE 9th Court
B37.8 52149 B & V Apartment Portfolio-960 NE 1st Ave. 960 NE 1st Ave.
B37.9 52149 B & V Apartment Portfolio-110 NE 10th Ave. 110 NE 10th Ave.
B37.10 52149 B & V Apartment Portfolio-186 NW 2nd St. 186 NW 2nd St.
B37.11 52149 B & V Apartment Portfolio-194 NW 2nd St. 194 NW 2nd St.
B37.12 52149 B & V Apartment Portfolio-460 NW 6th St. 460 NW 6th St.
B37.13 52149 B & V Apartment Portfolio-480 NW 6th St. 480 NW 6th St.
B37.14 52149 B & V Apartment Portfolio-521 NW 5th St. 521 NW 5th St.
B37.15 52149 B & V Apartment Portfolio-906 NW 1st Ave. 906 NW 1st Ave.
B37.16 52149 B & V Apartment Portfolio-925 N. Krome Ave. 925 N. Krome Ave.
B37.17 52149 B & V Apartment Portfolio-30100 Old Dixie Highway 30100 Old Dixie Highway
B37 52149 B & V Apartment Portfolio-Summary Loan Roll-Up
B38 51315 Arbor Pointe Apartments 6710, 6720 and 6740 Hayvenhurst Ave
B39 51575 Emerald Estates 22, 24, 26 W. Jamestown St
H10 283360 Paige East Apartments 10857 Sharondale Road
B40 51676 Cedar Pointe Apartments-Tampa 5409 Temple Palms Ave
B41 51829 Woodley Apartments 7045 Woodley Avenue
B42 51658 Cedar Park Apartments 831 Cedar Avenue
B43 52249 Lake D'Ville North Apartments 168 Hickory Heights Drive
B44 51921 Villa North Apartments 601-605 Labrador Blvd & 606 Long Blvd
B45 50598 1710-1730 Popham Ave 1710-1730 Popham Ave
B46 600006 Westview Terrace Apartments 8021 Calmont Ave
B47 51531 Sunshine Village Apartments 2220 Chanticleer Avenue
B48 51659 Glenn Terrace Apartments 5301, 5309 and 5317 East Glenn Street
B49 51059 L11 - Goldfarb Apartments 701-703 Hollycrest Dr, 702 Crescent Dr & 2003 W. John St.
B50.1 51961 SCI Portfolio-1401 Elm Street 1401 Elm Street
B50.2 51961 SCI Portfolio-500 W 7th Street 500 W. 7th Street
B50 51961 SCI Portfolio-1401 Elm St. & 500 W 7th St. Loan Roll-Up
B51 52804 Interstate Corporate Center 6387 Center Drive
B52 51647 111 W. Jackson 111 W. Jackson Blvd.
B53 52323 West*Quest Office Buildings 1580A and 1580B West Nursery Road
H11 176225 11 East 44th Street 11 East 44th Street
B54 51834 Bank One Plaza 201 East Main St
B55 51830 Diamond Hill Office Complex 2420-2460 West 26th Avenue
B56 52134 Toyota Office Building 50 South Third Street
H12 510238 Summit at Southpoint 6410-6440 Southpoint Parkway
B57 52721 Household Finance Building 636 Grand Regency Blvd
B58 51552 Metro Square 121 7th Place E
B59 52644 Maritz Office Building 20285 South Western Avenue
B60 51962 SCI Portfolio-1025 Elm Street 1025 Elm St.
B61 50957 Birkdale Medical Village 16605 Birkdale Commons Parkway
B62 50945 The Paramount Building 301 N. Market Street
B63 52286 Woodcreek I & II 3010 and 3020 Woodcreek Drive
H13 281300 Stanford Financial Group Building 5050 Westheimer Road
B64 51504 Chubb Office Building-Reston, VA 1741 Business Center Drive
H14 513597 100 South Bedford Road 100 South Bedford Road
H15 162160 52 Duane Street 52 Duane Street
B65 51880 Collom and Carney Clinic 4800 Texas Blvd.
B66 51873 U.S. Sprint Building 3075 Prospect Park Drive
B67 51528 Chubb Office Building-Alpharetta, GA 4100 Old Milton Parkway
B68 52463 USinternetworking Plaza Building 175 Admiral Cochrane Drive
B69 52258 Oilwell Supply Building 2001 North Lamar Street
H16 521564 The Kirby Building 6555 Quince Road
H17 540310 500 South Sepulveda Boulevard 500 South Sepulveda Boulevard
H18 178365 One and Two Aspen Corporate Park 1460 and 1480 Route 9 North
B70 51849 Thunderbird Medical Plaza II 5310 West Thunderbird Road
B71 52308 Wake County Board of Education Building 4401 Atlantic Ave.
B72 52342 180 Townsend Street 180 Townsend Street
B73 52049 Coral Ridge Financial Center 2419 E. Commercial Blvd
H19 513596 146 & 146A Manetto Hill Road 146 & 146A Manetto Hill Road
B74 51817 Eden Medical Plaza 20126 Stanton Avenue
B75 52572 Pike Place Office Park 316, 318, 320 and 324 West Pike St.
B76 51839 Roseville Health Care Center 3100 Douglas Blvd
B77 51574 Cohasset Village 250, 254, 270, 274 and 280 Cohasset Road
B78 51657 Jefferson Park Medical Plaza 41715 Winchester Rd
B79 52364 Jordan Creek Center 8800 Glacier Highway
H20 280630 GTEC Center 201 Technacenter Drive
B80 51922 Quail Medical Park I 6630-A South McCarran Blvd
B81 51650 OHA/SSA Office Building 2401 Southgate Drive
B82 51929 Aptos Ridge Office Building 9565 Soquel Drive
B83 51833 Greater Northeast Medical Center 1647 Benning Road, NE
B84 52186 3850 South Capitol Street 3850 South Capitol Street, SE
B85 52083 Verre Centre 1835 Savoy Drive
B86 51571 Riverside Building 1045 Riverside Avenue
B87.1 51673 Residence Inn - Boston (Tewksbury) 1775 Andover St.
B87.2 51673 Residence Inn - Meriden 390 Bee St.
B87.3 51673 Residence Inn - Atlanta (Hapeville) 3401 International Boulevard
B87.4 51673 Residence Inn - Montgomery 1200 Hilmar Ct.
B87.5 51673 Residence Inn - Cincinnati (Blue Ash) 11401 Reed Hartman Highway
B87.6 51673 Residence Inn - Dallas (Irving) 950 Walnut Hill Lane
B87.7 51673 Residence Inn - Houston 525 Bay Area Blvd.
B87.8 51673 Residence Inn - Bakersfield 4241 Chester Lane
B87.9 51673 Residence Inn - Pleasant Hill 700 Ellinwood Way
B87.10 51673 Residence Inn - San Ramon 1071 Market Place
B87 51673 Residence Inn Portfolio Loan Roll-Up
B88 51651 East Lansing Marriott 300 M.A.C. Avenue
B89 51540 Marriott Courtyard Solana Beach 717 South Highway 101
B90 51821 Holiday Inn Express-Garden City, KS 2502 E. Kansas Ave
B91 51586 Days Inn - Chula Vista 699 E Street
B92 51926 Comfort Inn-Ottawa, IL 510 East Etna Road
B93 51925 Comfort Inn-Princeton, IL 2200 North Main Street
B94 52751 4900 Ampere Drive 4900 Ampere Drive
B95 51672 Safdi Plaza 10 Jay Street
H21 280970 Federal Express Building - El Segundo 645 Allied Way
H22 279320 270 & 300-330 John Downey Drive 270 & 300-330 John Downey Drive
B96 52477 Water's Ridge Office/ Warehouse Facility 1301-A Ridgeview Drive
B97 51598 Vatrano Commercial Park 1895 Central Avenue
B98 51643 Putty Hill Flex/Warehouse Facility 8019 Belair Road
B99 51374 123 East Alma Avenue 123 East Alma Ave.
B100 51609 Handy Storage 12 8910 Cleary Blvd
B101 51631 Ace Self Storage 3290 North Rancho Drive
B102 51652 Morena Self Storage 908 Sherman Street
B103 52071 American International Storage 2100 NE 162nd St
B104 51628 AIM All Storage III 11215 Indiana Avenue
B105 51832 Capistrano A+ Storage 34190 Camino Capistrano
B106 51633 American Store & Lock #3 9833 Newell-Hickory Grove Road
<CAPTION>
Sequence Loan Zip Mortgage Amortization Original
Number Number City State Code Rate (%) Basis Balance Cut-off Balance
-----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
B1 51642 Moreno Valley CA 92553 8.060% ACT/360 23,095,000.00 22,990,591.25
B2.1 52458 Powder Sprintgs GA 30127
B2.2 52458 Columbus GA 31909
B2.3 52458 Deltona FL 32725
B2.4 52458 Humble (Houston) TX 77346
B2 52458 7.770% ACT/360 14,200,000.00 14,200,000.00
B3 52314 Athens GA 30606 8.390% ACT/360 8,600,000.00 8,593,326.62
B4 51826 Yorba Linda CA 92887 8.410% ACT/360 8,200,000.00 8,180,133.96
H1 180602 Glendale AZ 85308 8.392% ACT/360 7,850,000.00 7,835,882.90
B5 51835 Palm Harbor FL 34677 8.590% ACT/360 7,127,500.00 7,102,309.06
B6 52050 Spokane WA 92204 8.660% ACT/360 6,350,000.00 6,319,586.10
B7 51903 Arlington TX 76012 8.500% ACT/360 5,850,000.00 5,836,204.77
H2 163162 Laguna Niguel CA 92677 7.997% ACT/360 4,500,000.00 4,429,747.78
B8 52070 Covina CA 91722 8.650% ACT/360 3,450,000.00 3,445,117.42
B9 51656 Keystone Heights FL 32656 8.200% ACT/360 2,688,744.00 2,675,853.22
B10 51653 Rancho Santa Margarita CA 92688 7.830% ACT/360 2,650,000.00 2,633,987.04
H3 278350 Houston TX 77070 9.562% ACT/360 2,600,000.00 2,593,033.58
B11 51591 Perry GA 31069 8.180% ACT/360 2,500,000.00 2,486,225.86
B12 51619 Burbank CA 91502 8.840% ACT/360 2,401,600.00 2,377,748.85
B13 51305 Mesa AZ 85213 7.000% ACT/360 2,164,500.00 2,125,830.55
B14 51592 Warner Robins GA 31093 8.220% ACT/360 2,078,148.00 2,069,148.20
B15 52649 Sparta TN 38583 8.000% ACT/360 1,950,000.00 1,948,243.82
B16 52130 Midlothian VA 23113 8.110% ACT/360 1,950,000.00 1,946,158.66
B17 51597 Downers Grove IL 60516 8.290% ACT/360 1,853,000.00 1,843,090.12
B18 51566 Ranson WV 25438 8.020% ACT/360 1,850,000.00 1,835,355.04
H4 281595 Southlake TX 76092 8.411% ACT/360 1,800,000.00 1,798,614.96
B19 52347 Murrells Inlet SC 29576 8.020% ACT/360 1,581,000.00 1,578,674.76
B20 51852 Los Angeles CA 90016 8.350% ACT/360 1,250,000.00 1,229,245.93
B21 51393 Visalia CA 93292 8.335% ACT/360 904,500.00 848,053.83
B22 51394 Visalia CA 93291 8.460% ACT/360 762,200.00 715,121.58
H5 277025 North Palm Beach FL 33410 8.030% ACT/360 30,000,000.00 29,849,231.81
H6 277035 Weston FL 33331 7.980% ACT/360 27,300,000.00 26,165,959.76
H7 277070 Las Vegas NV 89147 7.980% ACT/360 21,412,500.00 21,303,408.08
H8 277060 Las Vegas NV 89147 7.980% ACT/360 10,350,000.00 10,297,269.03
B23 52027 Tempe AZ 85282 8.440% ACT/360 25,541,730.00 25,480,402.42
B24 52542 Las Vegas NV 89103 7.930% ACT/360 15,250,000.00 15,242,980.50
B25 52370 Miami FL 33172 8.287% ACT/360 12,960,000.00 12,927,439.94
B26 51963 Lexington KY 40502 8.420% ACT/360 10,800,000.00 10,769,638.08
B27 52097 Verona NJ 07044 8.570% ACT/360 9,500,000.00 9,457,921.41
B28 52096 Austin TX 78751 8.600% ACT/360 6,750,000.00 6,723,689.67
B29 51836 Orange CA 92867 8.140% ACT/360 5,056,000.00 5,018,058.09
B30 52024 Tallahassee FL 32304 8.020% ACT/360 4,920,000.00 4,910,030.90
B31 51580 Des Moines IA 50310 8.340% ACT/360 4,900,000.00 4,877,418.77
B32 50221 Dalton GA 30720 7.540% ACT/360 4,887,000.00 4,760,038.72
H9 513561 Fort Worth TX 76133 7.514% ACT/360 4,760,000.00 4,667,577.73
B33 52257 Kentwood MI 49512 7.960% ACT/360 4,650,000.00 4,642,562.12
B34 51823 Austin TX 78751 7.820% ACT/360 3,900,000.00 3,874,378.38
B35 51641 Great Mills MD 20634 7.700% ACT/360 3,840,000.00 3,813,962.47
B36 51920 Jacksonville FL 32207 7.970% ACT/360 3,600,000.00 3,581,608.80
B37.1 52149 Homestead FL 33030
B37.2 52149 Homestead FL 33030
B37.3 52149 Homestead FL 33030
B37.4 52149 Homestead FL 33030
B37.5 52149 Homestead FL 33030
B37.6 52149 Homestead FL 33030
B37.7 52149 Homestead FL 33030
B37.8 52149 Homestead FL 33030
B37.9 52149 Homestead FL 33030
B37.10 52149 Homestead FL 33030
B37.11 52149 Homestead FL 33030
B37.12 52149 Homestead FL 33030
B37.13 52149 Homestead FL 33030
B37.14 52149 Homestead FL 33030
B37.15 52149 Homestead FL 33030
B37.16 52149 Homestead FL 33030
B37.17 52149 Homestead FL 33033
B37 52149 7.890% ACT/360 3,584,000.00 3,576,441.57
B38 51315 Van Nuys CA 91406 7.000% ACT/360 3,280,000.00 3,221,401.72
B39 51575 Stockton CA 95207 8.550% ACT/360 3,070,000.00 3,054,721.02
H10 283360 Cincinnati OH 45241 8.000% ACT/360 3,000,000.00 2,998,653.73
B40 51676 Tampa FL 33617 8.210% ACT/360 2,720,000.00 2,708,188.59
B41 51829 Van Nuys CA 91406 7.980% ACT/360 2,155,000.00 2,145,048.88
B42 51658 Bensalem PA 19020 8.140% ACT/360 2,090,000.00 2,078,360.60
B43 52249 Hendersonville TN 37075 7.560% ACT/360 2,000,000.00 1,997,900.09
B44 51921 Garden City KS 67846 8.610% ACT/360 1,973,722.00 1,968,498.17
B45 50598 Bronx NY 10453 7.530% ACT/360 1,863,993.31 1,848,872.99
B46 600006 Fort Worth TX 76116 8.040% ACT/360 1,480,000.00 1,477,019.79
B47 51531 Santa Cruz CA 95062 7.710% ACT/360 1,456,589.18 1,442,917.76
B48 51659 Tucson AZ 85712 8.030% ACT/360 1,085,600.00 1,080,144.24
B49 51059 Champaign IL 61821 6.570% ACT/360 1,040,000.00 1,019,517.52
B50.1 51961 Dallas TX 75202
B50.2 51961 Fort Worth TX 76102
B50 51961 8.680% ACT/360 34,482,000.00 34,189,372.55
B51 52804 Norfolk VA 23502 8.500% ACT/360 26,600,000.00 26,580,260.48
B52 51647 Chicago IL 60604 8.840% ACT/360 26,122,000.00 26,057,903.23
B53 52323 Linthicum Heights MD 21090 7.670% ACT/360 21,600,000.00 21,600,000.00
H11 176225 New York NY 10017 8.300% ACT/360 18,000,000.00 17,883,989.77
B54 51834 Lexington KY 40507 8.310% ACT/360 17,000,000.00 16,920,985.32
B55 51830 Denver CO 80211 7.800% ACT/360 15,500,000.00 15,424,978.48
B56 52134 Memphis TN 38103 7.895% ACT/360 15,000,000.00 14,928,673.89
H12 510238 Jacksonville FL 32216 6.931% ACT/360 14,900,000.00 14,675,679.82
B57 52721 Brandon FL 33510 8.250% ACT/360 14,300,000.00 14,279,026.78
B58 51552 St. Paul MN 55101 7.600% ACT/360 14,000,000.00 13,883,832.11
B59 52644 Torrance CA 90501 8.488% ACT/360 13,760,000.00 13,754,887.87
B60 51962 Dallas TX 75202 8.680% ACT/360 9,000,000.00 8,923,622.56
B61 50957 Huntersville NC 28078 6.750% ACT/360 8,500,000.00 8,339,219.24
B62 50945 Dallas TX 75202 7.005% ACT/360 8,320,000.00 8,157,740.66
B63 52286 Downers Grove IL 60515 8.060% ACT/360 8,000,000.00 7,983,991.07
H13 281300 Houston TX 77056 8.478% ACT/360 7,990,000.00 7,979,083.38
B64 51504 Reston VA 20190 8.280% ACT/360 7,997,400.00 7,955,812.54
H14 513597 Mount Kisco NY 10549 7.140% 30/360 8,200,000.00 7,922,504.47
H15 162160 New York NY 10007 7.490% ACT/360 7,500,000.00 7,361,522.54
B65 51880 Texarkana TX 75503 8.410% ACT/360 7,360,000.00 7,349,726.54
B66 51873 Rancho Cordova CA 95670 8.400% ACT/360 7,007,000.00 6,994,432.30
B67 51528 Alpharetta GA 30005 7.940% ACT/360 6,800,000.00 6,762,029.47
B68 52463 Annapolis MD 21401 8.800% ACT/360 6,750,000.00 6,734,498.10
B69 52258 Dallas TX 75202 8.120% ACT/360 6,500,000.00 6,482,860.29
H16 521564 Memphis TN 38119 6.464% ACT/360 6,500,000.00 6,380,933.44
H17 540310 Los Angeles CA 90049 7.500% ACT/360 6,100,000.00 6,019,446.15
H18 178365 Woodbridge NJ 07095 8.622% ACT/360 5,800,000.00 5,779,676.93
B70 51849 Glendale AZ 85306 8.100% ACT/360 5,425,000.00 5,400,734.77
B71 52308 Raleigh NC 27604 8.760% ACT/360 4,500,000.00 4,489,572.37
B72 52342 San Francisco CA 94107 7.900% ACT/360 4,400,000.00 4,395,891.64
B73 52049 Fort Lauderdale FL 33308 8.590% ACT/360 4,100,000.00 4,097,069.46
H19 513596 Plainview NY 11803 7.010% ACT/360 3,550,000.00 3,450,579.38
B74 51817 Castro Valley CA 94546 8.020% ACT/360 3,200,000.00 3,186,873.38
B75 52572 Lawrenceville GA 30045 8.400% ACT/360 3,000,000.00 2,997,681.38
B76 51839 Roseville CA 95661 8.490% ACT/360 3,014,000.00 2,995,221.07
B77 51574 Chico CA 95926 8.270% ACT/360 3,000,000.00 2,985,897.37
B78 51657 Temecula CA 92590 8.140% ACT/360 2,866,000.00 2,852,027.46
B79 52364 Juneau AK 99801 8.280% ACT/360 2,825,000.00 2,817,729.65
H20 280630 Montgomery AL 36117 8.779% ACT/360 2,718,000.00 2,714,632.09
B80 51922 Reno NV 89509 8.480% ACT/360 2,604,000.00 2,597,822.23
B81 51650 Kingsport TN 37660 8.230% ACT/360 2,398,000.00 2,387,344.32
B82 51929 Aptos CA 95003 8.540% ACT/360 2,100,000.00 2,099,236.42
B83 51833 Washington DC 20002 8.030% ACT/360 1,938,000.00 1,928,260.35
B84 52186 Washington DC 20032 7.660% ACT/360 1,650,000.00 1,613,543.03
B85 52083 Chamblee GA 30341 8.870% ACT/360 1,309,000.00 1,303,016.78
B86 51571 Jacksonville FL 32202 8.590% ACT/360 1,177,089.00 1,168,116.57
B87.1 51673 Tewksbury MA 01876
B87.2 51673 Meriden CT 06450
B87.3 51673 Hapeville GA 30354
B87.4 51673 Montgomery AL 36117
B87.5 51673 Blue Ash OH 45241
B87.6 51673 Irving TX 75038
B87.7 51673 Houston TX 77058
B87.8 51673 Bakersfield CA 93309
B87.9 51673 Pleasant Hill CA 94523
B87.10 51673 San Ramon CA 94583
B87 51673 8.080% ACT/360 55,588,000.00 54,698,161.03
B88 51651 East Lansing MI 48823 8.620% ACT/360 13,000,000.00 12,901,520.25
B89 51540 Solana Beach CA 92075 8.580% ACT/360 12,800,000.00 12,656,003.58
B90 51821 Garden City KS 67846 8.840% ACT/360 2,450,000.00 2,414,364.58
B91 51586 Chula Vista CA 91910 9.280% ACT/360 2,100,000.00 2,086,180.07
B92 51926 Ottawa IL 61350 9.870% ACT/360 1,430,789.00 1,424,060.73
B93 51925 Princeton IL 61356 9.870% ACT/360 1,182,168.00 1,176,608.90
B94 52751 Reno NV 89502 8.110% ACT/360 6,300,000.00 6,289,789.19
B95 51672 Brooklyn NY 11201 8.860% ACT/360 4,800,000.00 4,781,334.01
H21 280970 El Segundo CA 90245 8.468% ACT/360 4,300,000.00 4,294,106.36
H22 279320 New Britain CT 06051 8.885% ACT/360 2,300,000.00 2,291,743.45
B96 52477 Lewisville TX 75057 8.290% ACT/360 2,075,000.00 2,071,782.11
B97 51598 Albany NY 12205 8.400% ACT/360 1,940,000.00 1,917,368.45
B98 51643 Baltimore MD 21236 9.350% ACT/360 1,207,000.00 1,200,667.76
B99 51374 San Jose CA 95112 7.750% ACT/360 975,000.00 961,783.43
B100 51609 Plantation FL 33324 8.080% ACT/360 4,200,000.00 4,179,180.71
B101 51631 Las Vegas NV 89130 8.360% ACT/360 2,800,000.00 2,774,669.43
B102 51652 San Diego CA 92110 7.780% ACT/360 2,600,000.00 2,576,694.05
B103 52071 North Miami Beach FL 33162 8.930% ACT/360 2,560,600.00 2,555,319.75
B104 51628 Riverside CA 92503 8.160% ACT/360 2,125,000.00 2,107,324.09
B105 51832 Capistrano Beach CA 92624 8.270% ACT/360 1,750,000.00 1,742,523.54
B106 51633 Charlotte NC 28213 8.405% ACT/360 1,299,467.00 1,289,178.75
<CAPTION>
Remaining Term
To Stated
Sequence Loan Maturity / ARD Stated Maturity
Number Number (months) Date/ ARD Due Date Monthly Payment Admin. Fee Primary Servicing Fee
-----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
B1 51642 112 01/01/10 1st $170,429.92 0.14335% 0.10000%
B2.1 52458
B2.2 52458
B2.3 52458
B2.4 52458
B2 52458 117 06/01/10 1st $ - 0.14335% 0.10000%
B3 52314 118 07/01/10 1st $ 65,457.29 0.09335% 0.05000%
B4 51826 115 04/01/10 1st $ 62,528.63 0.11335% 0.07000%
H1 180602 116 05/01/10 1st $ 59,759.90 0.08335% 0.04000%
B5 51835 113 02/01/10 1st $ 55,259.57 0.14335% 0.10000%
B6 52050 114 03/01/10 1st $ 51,818.40 0.14335% 0.10000%
B7 51903 115 04/01/10 1st $ 44,981.44 0.14335% 0.10000%
H2 163162 104 05/01/09 1st $ 34,722.79 0.08335% 0.04000%
B8 52070 118 07/01/10 1st $ 28,129.94 0.14335% 0.10000%
B9 51656 111 12/01/09 1st $ 20,105.20 0.14335% 0.10000%
B10 51653 110 11/01/09 1st $ 19,131.63 0.14335% 0.10000%
H3 278350 113 02/01/10 1st $ 21,979.92 0.08335% 0.04000%
B11 51591 110 11/01/09 1st $ 18,658.78 0.14335% 0.10000%
B12 51619 108 09/01/09 1st $ 19,891.66 0.14335% 0.10000%
B13 51305 97 10/01/08 1st $ 14,400.47 0.14335% 0.10000%
B14 51592 112 01/01/10 1st $ 15,568.62 0.14335% 0.10000%
B15 52649 118 07/01/10 1st $ 14,308.41 0.14335% 0.10000%
B16 52130 116 05/01/10 1st $ 14,458.22 0.14335% 0.10000%
B17 51597 110 11/01/09 1st $ 13,973.11 0.14335% 0.10000%
B18 51566 106 07/01/09 1st $ 13,600.45 0.14335% 0.10000%
H4 281595 118 07/01/10 1st $ 13,727.07 0.08335% 0.04000%
B19 52347 119 08/01/10 1st $ 13,243.80 0.14335% 0.10000%
B20 51852 174 03/01/15 1st $ 12,288.74 0.14335% 0.10000%
B21 51393 159 12/01/13 1st $ 8,884.19 0.14335% 0.10000%
B22 51394 159 12/01/13 1st $ 7,543.26 0.14335% 0.10000%
H5 277025 111 12/01/09 1st $220,757.10 0.08335% 0.04000%
H6 277035 111 12/01/09 1st $192,159.09 0.08335% 0.04000%
H7 277070 111 12/01/09 1st $156,818.90 0.08335% 0.04000%
H8 277060 111 12/01/09 1st $ 75,800.38 0.08335% 0.04000%
B23 52027 115 04/01/10 1st $195,308.74 0.09335% 0.05000%
B24 52542 119 08/01/10 1st $111,155.82 0.14335% 0.10000%
B25 52370 115 04/01/10 1st $ 97,701.46 0.14335% 0.10000%
B26 51963 114 03/01/10 1st $ 82,431.11 0.14335% 0.10000%
B27 52097 113 02/01/10 1st $ 74,681.55 0.14335% 0.10000%
B28 52096 52 01/01/05 1st $ 52,380.79 0.09835% 0.05500%
B29 51836 112 01/01/10 1st $ 39,493.09 0.14335% 0.10000%
B30 52024 116 05/01/10 1st $ 36,169.84 0.11335% 0.07000%
B31 51580 111 12/01/09 1st $ 37,122.55 0.14335% 0.10000%
B32 50221 48 09/01/04 1st $ 34,304.57 0.11835% 0.07500%
H9 513561 102 03/01/09 1st $ 35,219.34 0.08335% 0.04000%
B33 52257 117 06/01/10 1st $ 33,990.48 0.14335% 0.10000%
B34 51823 49 10/01/04 1st $ 28,128.97 0.14335% 0.10000%
B35 51641 109 10/01/09 1st $ 27,377.67 0.14335% 0.10000%
B36 51920 111 12/01/09 1st $ 26,340.27 0.14335% 0.10000%
B37.1 52149
B37.2 52149
B37.3 52149
B37.4 52149
B37.5 52149
B37.6 52149
B37.7 52149
B37.8 52149
B37.9 52149
B37.10 52149
B37.11 52149
B37.12 52149
B37.13 52149
B37.14 52149
B37.15 52149
B37.16 52149
B37.17 52149
B37 52149 116 05/01/10 1st $ 26,023.81 0.14335% 0.10000%
B38 51315 97 10/01/08 1st $ 21,821.92 0.14335% 0.10000%
B39 51575 110 11/01/09 1st $ 23,714.52 0.14335% 0.10000%
H10 283360 119 08/01/10 1st $ 22,012.94 0.08335% 0.04000%
B40 51676 112 01/01/10 1st $ 20,358.01 0.14335% 0.10000%
B41 51829 112 01/01/10 1st $ 15,782.59 0.14335% 0.10000%
B42 51658 110 11/01/09 1st $ 15,540.14 0.14335% 0.10000%
B43 52249 118 07/01/10 1st $ 14,066.55 0.14335% 0.10000%
B44 51921 114 03/01/10 1st $ 15,330.35 0.14335% 0.10000%
B45 50598 91 04/01/08 1st $ 13,257.37 0.29335% 0.25000%
B46 600006 116 05/01/10 1st $ 10,901.01 0.24335% 0.20000%
B47 51531 105 06/01/09 1st $ 10,394.95 0.14335% 0.10000%
B48 51659 111 12/01/09 1st $ 7,988.46 0.14335% 0.10000%
B49 51059 97 10/01/08 1st $ 6,621.46 0.14335% 0.10000%
B50.1 51961
B50.2 51961
B50 51961 110 11/01/09 1st $281,853.50 0.14335% 0.10000%
B51 52804 118 07/01/10 1st $204,530.99 0.14335% 0.10000%
B52 51647 114 03/01/10 1st $207,183.26 0.14335% 0.10000%
B53 52323 120 09/01/10 1st $153,552.65 0.11835% 0.07500%
H11 176225 72 09/01/06 1st $135,861.22 0.08335% 0.04000%
B54 51834 111 12/01/09 1st $128,433.10 0.14335% 0.10000%
B55 51830 112 01/01/10 1st $111,579.93 0.14335% 0.10000%
B56 52134 117 06/01/10 1st $124,487.58 0.14335% 0.10000%
H12 510238 101 02/01/09 1st $ 98,440.57 0.08335% 0.04000%
B57 52721 117 06/01/10 1st $107,431.12 0.09335% 0.05000%
B58 51552 107 08/01/09 1st $ 98,850.46 0.14335% 0.10000%
B59 52644 119 08/01/10 1st $105,685.50 0.14335% 0.10000%
B60 51962 110 11/01/09 1st $ 73,565.38 0.14335% 0.10000%
B61 50957 97 10/01/08 1st $ 55,130.84 0.14335% 0.10000%
B62 50945 101 02/01/09 1st $ 55,381.11 0.14335% 0.10000%
B63 52286 116 05/01/10 1st $ 59,036.13 0.14335% 0.10000%
H13 281300 117 06/01/10 1st $ 61,311.65 0.08335% 0.04000%
B64 51504 114 03/01/10 1st $ 63,215.92 0.14335% 0.10000%
H14 513597 154 07/01/13 1st $ 58,690.29 0.08335% 0.04000%
H15 162160 103 04/01/09 1st $ 55,375.56 0.08335% 0.04000%
B65 51880 117 06/01/10 1st $ 56,123.25 0.14335% 0.10000%
B66 51873 116 05/01/10 1st $ 53,381.96 0.14335% 0.10000%
B67 51528 114 03/01/10 1st $ 52,213.51 0.14335% 0.10000%
B68 52463 117 06/01/10 1st $ 55,724.18 0.14335% 0.10000%
B69 52258 115 04/01/10 1st $ 48,239.57 0.14335% 0.10000%
H16 521564 99 12/01/08 1st $ 40,930.65 0.08335% 0.04000%
H17 540310 101 02/01/09 1st $ 42,652.09 0.08335% 0.04000%
H18 178365 113 02/01/10 1st $ 45,099.43 0.08335% 0.04000%
B70 51849 112 01/01/10 1st $ 40,185.56 0.14335% 0.10000%
B71 52308 81 06/01/07 1st $ 37,027.04 0.14335% 0.10000%
B72 52342 118 07/01/10 1st $ 31,979.44 0.14335% 0.10000%
B73 52049 118 07/01/10 1st $ 31,787.34 0.14335% 0.10000%
H19 513596 97 10/01/08 1st $ 25,113.31 0.08335% 0.04000%
B74 51817 113 02/01/10 1st $ 23,525.10 0.14335% 0.10000%
B75 52572 118 07/01/10 1st $ 22,855.13 0.14335% 0.10000%
B76 51839 113 02/01/10 1st $ 24,249.24 0.14335% 0.10000%
B77 51574 111 12/01/09 1st $ 22,580.19 0.14335% 0.10000%
B78 51657 111 12/01/09 1st $ 21,310.07 0.14335% 0.10000%
B79 52364 117 06/01/10 1st $ 22,330.38 0.14335% 0.10000%
H20 280630 118 07/01/10 1st $ 21,438.84 0.08335% 0.04000%
B80 51922 115 04/01/10 1st $ 19,985.61 0.14335% 0.10000%
B81 51650 115 04/01/10 1st $ 18,875.00 0.14335% 0.10000%
B82 51929 119 08/01/10 1st $ 16,206.75 0.14335% 0.10000%
B83 51833 111 12/01/09 1st $ 14,260.91 0.14335% 0.10000%
B84 52186 116 05/01/10 1st $ 19,820.56 0.14335% 0.10000%
B85 52083 114 03/01/10 1st $ 10,868.79 0.14335% 0.10000%
B86 51571 111 12/01/09 1st $ 9,549.74 0.14335% 0.10000%
B87.1 51673
B87.2 51673
B87.3 51673
B87.4 51673
B87.5 51673
B87.6 51673
B87.7 51673
B87.8 51673
B87.9 51673
B87.10 51673
B87 51673 112 01/01/10 1st $489,067.76 0.09335% 0.05000%
B88 51651 111 12/01/09 1st $105,732.88 0.14335% 0.10000%
B89 51540 107 08/01/09 1st $103,760.05 0.14335% 0.10000%
B90 51821 110 11/01/09 1st $ 21,791.81 0.14335% 0.10000%
B91 51586 111 12/01/09 1st $ 18,027.51 0.14335% 0.10000%
B92 51926 113 02/01/10 1st $ 12,870.70 0.14335% 0.10000%
B93 51925 113 02/01/10 1st $ 10,634.22 0.14335% 0.10000%
B94 52751 118 07/01/10 1st $ 49,084.39 0.14335% 0.10000%
B95 51672 55 04/01/05 1st $ 39,822.25 0.14335% 0.10000%
H21 280970 117 06/01/10 1st $ 32,965.81 0.08335% 0.04000%
H22 279320 112 01/01/10 1st $ 18,316.32 0.08335% 0.04000%
B96 52477 118 07/01/10 1st $ 16,415.84 0.14335% 0.10000%
B97 51598 107 08/01/09 1st $ 15,490.89 0.14335% 0.10000%
B98 51643 113 02/01/10 1st $ 10,419.94 0.14335% 0.10000%
B99 51374 99 12/01/08 1st $ 6,985.02 0.14335% 0.10000%
B100 51609 111 12/01/09 1st $ 31,052.67 0.14335% 0.10000%
B101 51631 110 11/01/09 1st $ 22,282.81 0.14335% 0.10000%
B102 51652 111 12/01/09 1st $ 19,689.78 0.14335% 0.10000%
B103 52071 115 04/01/10 1st $ 20,474.33 0.14335% 0.10000%
B104 51628 111 12/01/09 1st $ 16,626.96 0.14335% 0.10000%
B105 51832 112 01/01/10 1st $ 13,171.78 0.14335% 0.10000%
B106 51633 111 12/01/09 1st $ 10,380.60 0.14335% 0.10000%
<CAPTION>
Sequence Loan Special Servicer
Number Number Master Servicing Fee Standby Fee Ownership Interest Crossed PropertyType
-----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
B1 51642 0.14075% 0.00075% Fee Simple No Retail
B2.1 52458
B2.2 52458
B2.3 52458
B2.4 52458
B2 52458 0.14075% 0.00075% Fee Simple No Retail
B3 52314 0.09075% 0.00075% Fee Simple No Retail
B4 51826 0.11075% 0.00075% Fee Simple No Retail
H1 180602 0.08075% 0.00075% Fee Simple No Retail
B5 51835 0.14075% 0.00075% Fee Simple No Retail
B6 52050 0.14075% 0.00075% Fee Simple No Retail
B7 51903 0.14075% 0.00075% Fee Simple No Retail
H2 163162 0.08075% 0.00075% Fee Simple No Retail
B8 52070 0.14075% 0.00075% Fee Simple No Retail
B9 51656 0.14075% 0.00075% Fee Simple No Retail
B10 51653 0.14075% 0.00075% Fee Simple No Retail
H3 278350 0.08075% 0.00075% Fee Simple No Retail
B11 51591 0.14075% 0.00075% Fee Simple No Retail
B12 51619 0.14075% 0.00075% Fee Simple No Retail
B13 51305 0.14075% 0.00075% Fee Simple No Retail
B14 51592 0.14075% 0.00075% Fee Simple No Retail
B15 52649 0.14075% 0.00075% Fee Simple No Retail
B16 52130 0.14075% 0.00075% Fee Simple No Retail
B17 51597 0.14075% 0.00075% Fee Simple No Retail
B18 51566 0.14075% 0.00075% Fee Simple No Retail
H4 281595 0.08075% 0.00075% Fee Simple No Retail
B19 52347 0.14075% 0.00075% Fee Simple No Retail
B20 51852 0.14075% 0.00075% Fee Simple No Retail
B21 51393 0.14075% 0.00075% Fee Simple Yes(00-2-A) Retail
B22 51394 0.14075% 0.00075% Fee Simple Yes(00-2-A) Retail
H5 277025 0.08075% 0.00075% Fee Simple Yes(00-2-J) Multifamily
H6 277035 0.08075% 0.00075% Fee Simple Yes(00-2-J) Multifamily
H7 277070 0.08075% 0.00075% Fee Simple Yes(00-2-J) Multifamily
H8 277060 0.08075% 0.00075% Fee Simple Yes(00-2-J) Multifamily
B23 52027 0.09075% 0.00075% Fee Simple No Multifamily
B24 52542 0.14075% 0.00075% Fee Simple No Multifamily
B25 52370 0.14075% 0.00075% Fee Simple No Multifamily
B26 51963 0.14075% 0.00075% Fee Simple No Multifamily
B27 52097 0.14075% 0.00075% Fee Simple No Multifamily
B28 52096 0.09575% 0.00075% Fee Simple No Multifamily
B29 51836 0.14075% 0.00075% Leasehold No Multifamily
B30 52024 0.11075% 0.00075% Fee Simple No Multifamily
B31 51580 0.14075% 0.00075% Fee Simple No Multifamily
B32 50221 0.11575% 0.00075% Fee Simple No Multifamily
H9 513561 0.08075% 0.00075% Fee Simple No Multifamily
B33 52257 0.14075% 0.00075% Fee Simple No Multifamily
B34 51823 0.14075% 0.00075% Fee Simple No Multifamily
B35 51641 0.14075% 0.00075% Fee Simple No Multifamily
B36 51920 0.14075% 0.00075% Fee Simple No Multifamily
B37.1 52149
B37.2 52149
B37.3 52149
B37.4 52149
B37.5 52149
B37.6 52149
B37.7 52149
B37.8 52149
B37.9 52149
B37.10 52149
B37.11 52149
B37.12 52149
B37.13 52149
B37.14 52149
B37.15 52149
B37.16 52149
B37.17 52149
B37 52149 0.14075% 0.00075% Fee Simple No Multifamily
B38 51315 0.14075% 0.00075% Fee Simple No Multifamily
B39 51575 0.14075% 0.00075% Fee Simple No Multifamily
H10 283360 0.08075% 0.00075% Fee Simple No Multifamily
B40 51676 0.14075% 0.00075% Fee Simple No Multifamily
B41 51829 0.14075% 0.00075% Fee Simple No Multifamily
B42 51658 0.14075% 0.00075% Fee Simple No Multifamily
B43 52249 0.14075% 0.00075% Fee Simple No Multifamily
B44 51921 0.14075% 0.00075% Fee Simple No Multifamily
B45 50598 0.29075% 0.00075% Fee Simple No Multifamily
B46 600006 0.24075% 0.00075% Fee Simple No Multifamily
B47 51531 0.14075% 0.00075% Fee Simple No Multifamily
B48 51659 0.14075% 0.00075% Fee Simple No Multifamily
B49 51059 0.14075% 0.00075% Fee Simple No Multifamily
B50.1 51961
B50.2 51961
B50 51961 0.14075% 0.00075% Leasehold No Office
B51 52804 0.14075% 0.00075% Fee Simple No Office
B52 51647 0.14075% 0.00075% Fee Simple No Office
B53 52323 0.11575% 0.00075% Leasehold No Office
H11 176225 0.08075% 0.00075% Fee Simple No Office
B54 51834 0.14075% 0.00075% Fee Simple No Office
B55 51830 0.14075% 0.00075% Fee Simple No Office
B56 52134 0.14075% 0.00075% Leasehold No Office
H12 510238 0.08075% 0.00075% Fee Simple No Office
B57 52721 0.09075% 0.00075% Fee Simple No Office
B58 51552 0.14075% 0.00075% Fee Simple No Office
B59 52644 0.14075% 0.00075% Fee Simple No Office
B60 51962 0.14075% 0.00075% Fee Simple No Office
B61 50957 0.14075% 0.00075% Fee Simple No Office
B62 50945 0.14075% 0.00075% Fee Simple No Office
B63 52286 0.14075% 0.00075% Fee Simple No Office
H13 281300 0.08075% 0.00075% Fee Simple No Office
B64 51504 0.14075% 0.00075% Fee Simple No Office
H14 513597 0.08075% 0.00075% Fee Simple No Office
H15 162160 0.08075% 0.00075% Fee Simple No Office
B65 51880 0.14075% 0.00075% Fee Simple No Office
B66 51873 0.14075% 0.00075% Fee Simple No Office
B67 51528 0.14075% 0.00075% Fee Simple No Office
B68 52463 0.14075% 0.00075% Fee Simple No Office
B69 52258 0.14075% 0.00075% Fee Simple No Office
H16 521564 0.08075% 0.00075% Fee Simple No Office
H17 540310 0.08075% 0.00075% Fee Simple No Office
H18 178365 0.08075% 0.00075% Fee Simple No Office
B70 51849 0.14075% 0.00075% Fee Simple No Office
B71 52308 0.14075% 0.00075% Fee Simple No Office
B72 52342 0.14075% 0.00075% Fee Simple No Office
B73 52049 0.14075% 0.00075% Fee Simple No Office
H19 513596 0.08075% 0.00075% Fee Simple No Office
B74 51817 0.14075% 0.00075% Leasehold No Office
B75 52572 0.14075% 0.00075% Fee Simple No Office
B76 51839 0.14075% 0.00075% Fee Simple No Office
B77 51574 0.14075% 0.00075% Fee Simple No Office
B78 51657 0.14075% 0.00075% Fee Simple No Office
B79 52364 0.14075% 0.00075% Fee Simple No Office
H20 280630 0.08075% 0.00075% Fee Simple No Office
B80 51922 0.14075% 0.00075% Fee Simple No Office
B81 51650 0.14075% 0.00075% Fee Simple No Office
B82 51929 0.14075% 0.00075% Fee Simple No Office
B83 51833 0.14075% 0.00075% Fee Simple No Office
B84 52186 0.14075% 0.00075% Fee Simple No Office
B85 52083 0.14075% 0.00075% Fee Simple No Office
B86 51571 0.14075% 0.00075% Fee Simple No Office
B87.1 51673
B87.2 51673
B87.3 51673
B87.4 51673
B87.5 51673
B87.6 51673
B87.7 51673
B87.8 51673
B87.9 51673
B87.10 51673
B87 51673 0.09075% 0.00075% Leasehold No Hotel
B88 51651 0.14075% 0.00075% Fee Simple No Hotel
B89 51540 0.14075% 0.00075% Fee Simple No Hotel
B90 51821 0.14075% 0.00075% Fee Simple No Hotel
B91 51586 0.14075% 0.00075% Leasehold No Hotel
B92 51926 0.14075% 0.00075% Fee Simple No Hotel
B93 51925 0.14075% 0.00075% Fee Simple No Hotel
B94 52751 0.14075% 0.00075% Fee Simple No Industrial
B95 51672 0.14075% 0.00075% Fee Simple No Industrial
H21 280970 0.08075% 0.00075% Fee Simple No Industrial
H22 279320 0.08075% 0.00075% Fee Simple No Industrial
B96 52477 0.14075% 0.00075% Fee Simple No Industrial
B97 51598 0.14075% 0.00075% Fee Simple No Industrial
B98 51643 0.14075% 0.00075% Fee Simple No Industrial
B99 51374 0.14075% 0.00075% Fee Simple No Industrial
B100 51609 0.14075% 0.00075% Fee Simple No Mini Storage
B101 51631 0.14075% 0.00075% Fee Simple No Mini Storage
B102 51652 0.14075% 0.00075% Fee Simple No Mini Storage
B103 52071 0.14075% 0.00075% Fee Simple No Mini Storage
B104 51628 0.14075% 0.00075% Fee Simple No Mini Storage
B105 51832 0.14075% 0.00075% Fee Simple No Mini Storage
B106 51633 0.14075% 0.00075% Fee Simple No Mini Storage
<CAPTION>
Original
Sequence Loan Amortization
Number Number Total Units Measurement Unit (months) ARD Loan Underwritten NOI
---------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
B1 51642 286,729 SF 360 No 2,634,823
B2.1 52458
B2.2 52458
B2.3 52458
B2.4 52458
B2 52458 296,215 SF 0 No 2,770,169
B3 52314 90,346 SF 360 No 986,772
B4 51826 57,999 SF 360 No 1,012,201
H1 180602 126,285 SF 360 Yes 964,492
B5 51835 136,051 SF 360 No 1,001,274
B6 52050 100,100 SF 300 No 877,607
B7 51903 157,155 SF 360 No 794,905
H2 163162 48,273 SF 300 Yes 592,840
B8 52070 80,600 SF 300 No 494,426
B9 51656 61,216 SF 360 No 315,559
B10 51653 15,049 SF 360 No 343,733
H3 278350 27,371 SF 360 Yes 325,978
B11 51591 32,200 SF 360 No 302,442
B12 51619 32,804 SF 300 No 345,857
B13 51305 35,130 SF 360 No 297,112
B14 51592 24,200 SF 360 No 277,984
B15 52649 31,400 SF 360 No 249,875
B16 52130 10,125 SF 360 No 218,349
B17 51597 14,442 SF 360 No 264,297
B18 51566 44,735 SF 360 No 220,198
H4 281595 16,865 SF 360 Yes 231,307
B19 52347 10,125 SF 240 No 219,650
B20 51852 87,760 SF 180 No 444,245
B21 51393 36,717 SF 180 No 140,250
B22 51394 44,533 SF 180 No 122,230
H5 277025 419 Units 360 Yes 3,536,383
H6 277035 372 Units 360 Yes 2,851,437
H7 277070 360 Units 360 Yes 2,538,169
H8 277060 184 Units 360 Yes 1,160,685
B23 52027 660 Units 360 No 2,982,727
B24 52542 440 Units 360 No 1,856,850
B25 52370 294 Units 360 No 1,495,161
B26 51963 332 Units 360 No 1,282,080
B27 52097 160 Units 336 No 1,152,738
B28 52096 111 Units 360 No 795,025
B29 51836 112 Units 300 No 614,810
B30 52024 190 Units 360 No 573,104
B31 51580 232 Units 360 No 610,131
B32 50221 155 Units 360 No 588,524
H9 513561 197 Units 300 Yes 667,060
B33 52257 168 Units 360 No 532,355
B34 51823 127 Units 360 No 481,979
B35 51641 64 Units 360 No 439,597
B36 51920 176 Units 360 No 452,025
B37.1 52149
B37.2 52149
B37.3 52149
B37.4 52149
B37.5 52149
B37.6 52149
B37.7 52149
B37.8 52149
B37.9 52149
B37.10 52149
B37.11 52149
B37.12 52149
B37.13 52149
B37.14 52149
B37.15 52149
B37.16 52149
B37.17 52149
B37 52149 193 Units 360 No 441,381
B38 51315 91 Units 360 No 351,940
B39 51575 120 Units 360 No 401,839
H10 283360 153 Units 360 Yes 440,341
B40 51676 75 Units 360 No 319,743
B41 51829 50 Units 360 No 275,337
B42 51658 77 Units 360 No 250,531
B43 52249 96 Units 360 No 342,109
B44 51921 92 Units 360 No 243,757
B45 50598 73 Units 342 No 214,197
B46 600006 96 Units 360 No 187,572
B47 51531 16 Units 360 No 203,582
B48 51659 29 Units 360 No 131,952
B49 51059 40 Units 360 No 111,380
B50.1 51961
B50.2 51961
B50 51961 717,855 SF 300 No 6,386,108
B51 52804 430,833 SF 360 No 3,635,278
B52 51647 540,351 SF 360 No 4,251,076
B53 52323 315,350 SF 360 No 4,418,688
H11 176225 123,000 SF 360 Yes 2,278,125
B54 51834 236,243 SF 360 No 2,253,101
B55 51830 374,137 SF 360 No 2,560,595
B56 52134 174,700 SF 240 No 2,343,677
H12 510238 254,437 SF 360 Yes 2,251,856
B57 52721 120,543 SF 360 No 1,603,234
B58 51552 335,920 SF 360 No 2,131,516
B59 52644 77,201 SF 360 No 1,580,277
B60 51962 137,534 SF 300 No 1,399,919
B61 50957 62,950 SF 360 No 918,079
B62 50945 113,768 SF 360 No 950,021
B63 52286 126,911 SF 360 No 1,163,848
H13 281300 71,014 SF 360 Yes 981,705
B64 51504 40,970 SF 300 No 916,516
H14 513597 91,798 SF 300 Yes 1,178,401
H15 162160 101,400 SF 300 Yes 1,223,287
B65 51880 77,732 SF 360 No 922,433
B66 51873 97,935 SF 360 No 899,358
B67 51528 41,358 SF 300 No 758,493
B68 52463 58,180 SF 300 No 986,932
B69 52258 65,353 SF 360 No 779,559
H16 521564 99,000 SF 360 Yes 920,938
H17 540310 43,722 SF 360 Yes 673,379
H18 178365 90,979 SF 360 Yes 767,814
B70 51849 58,665 SF 360 No 768,789
B71 52308 58,075 SF 300 No 589,884
B72 52342 37,647 SF 360 No 844,528
B73 52049 42,257 SF 360 No 552,535
H19 513596 31,444 SF 300 Yes 434,745
B74 51817 18,453 SF 360 No 407,359
B75 52572 50,400 SF 360 No 454,865
B76 51839 41,190 SF 300 No 532,311
B77 51574 45,074 SF 360 No 437,571
B78 51657 23,752 SF 360 No 369,317
B79 52364 51,060 SF 300 No 492,427
H20 280630 46,880 SF 360 Yes 369,909
B80 51922 23,140 SF 360 No 340,514
B81 51650 20,539 SF 300 No 294,821
B82 51929 18,750 SF 360 No 290,554
B83 51833 18,197 SF 360 No 273,331
B84 52186 14,400 SF 120 No 309,714
B85 52083 42,718 SF 300 No 235,483
B86 51571 23,297 SF 300 No 174,444
B87.1 51673
B87.2 51673
B87.3 51673
B87.4 51673
B87.5 51673
B87.6 51673
B87.7 51673
B87.8 51673
B87.9 51673
B87.10 51673
B87 51673 1,150 Rooms 216 No 12,623,812
B88 51651 180 Rooms 300 No 2,079,893
B89 51540 115 Rooms 300 No 1,944,177
B90 51821 69 Rooms 240 No 427,146
B91 51586 102 Rooms 300 No 420,766
B92 51926 55 Rooms 300 No 250,147
B93 51925 43 Rooms 300 No 208,325
B94 52751 212,620 SF 300 No 917,478
B95 51672 145,950 SF 300 No 753,727
H21 280970 50,433 SF 360 Yes 512,486
H22 279320 82,500 SF 360 Yes 298,848
B96 52477 102,820 SF 300 No 308,902
B97 51598 157,651 SF 300 No 357,064
B98 51643 33,000 SF 300 No 182,712
B99 51374 23,579 SF 360 No 179,036
B100 51609 95,704 SF 360 No 659,576
B101 51631 86,655 SF 300 No 362,002
B102 51652 104,248 SF 300 No 558,266
B103 52071 48,531 SF 360 No 317,699
B104 51628 143,508 SF 300 No 378,123
B105 51832 34,807 SF 360 No 316,239
B106 51633 46,100 SF 300 No 181,309
</TABLE>
<PAGE>
SCHEDULE II
BANK OF AMERICA, N.A.
SUB-SERVICING AGREEMENTS IN EFFECT
AS OF THE ORIGINAL CLOSING DATE
BANK OF AMERICA, N.A. SUB-SERVICING AGREEMENT
Agreement (with respect to each of the Sub-Servicers 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. and Bank of America NT&SA), 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.),
Berkshire Mortgage Finance Bethesda Limited Partnership and WMF Washington
Mortgage Corp. (successor in interest to Washington Mortgage Financial Group,
Ltd.), as supplemented by Sub-Servicer Addition Agreements dated as of September
25, 1998 executed by ARCS Commercial Mortgage Co., L.P., a California limited
partnership, and as supplemented by the Confirmation thereto dated as of
September 22, 2000.
Bank of America, N.A. Sub-Servicers:
-----------------------------------
ARCS Commercial Mortgage Co., L.P., a California limited partnership
Bank of America, N.A.
Berkshire Mortgage Finance Corporation
First Security Bank, N.A.
Berkshire Mortgage Finance Bethesda Limited Partnership
Prudential Multifamily Mortgage, Inc.
<PAGE>
SCHEDULE III
EXCEPTIONS TO INITIAL FILE DELIVERY
LOAN NO. PROPERTY NAME DOCUMENT EXCEPTION
283360 Paige East Apartments Allonge Missing
513597 100 South Bedford Allonge Document is copy; need
original
540310 500 South Sepulveda Allonge Document is copy; need
original
521564 The Kirby Building Mortgage Pages are missing from
document
<PAGE>
SCHEDULE 9
(PENDING CONDEMNATION)
LOAN NO. EXCEPTION
-------- ---------
51650 Pending condemnation of a portion of a
private access road which is a portion
of the collateral which does not affect
use of the access road.
<PAGE>
SCHEDULE 15
(CROSS-COLLATERALIZATION)
LOAN NO. EXCEPTION
51393 Cross-collateralized with Loan No.
51394.
51394 Cross-collateralized with Loan No.
51393.
277025 Cross-collateralized with Loan Nos.
277035, 277060 and 277070.
277035 Cross-collateralized with Loan Nos.
277025, 277060 and 277070.
277060 Cross-collateralized with Loan Nos.
277025, 277035 and 277070.
277070 Cross-collateralized with Loan Nos.
277025, 277035 and 277060.
51961 Lender's sole option to
cross-collateralize with Loan No.
51962.
51962 Lender's sole option to
cross-collateralize with Loan No.
51961.
<PAGE>
104120.1
SCHEDULE 18
(FEE INTEREST)
LOAN NO. EXCEPTION
HVB 180602 This Mortgage Loan is secured primarily
by a Mortgage on the related Mortgagor's
estate-for-years interest in the related
Mortgaged Property; the remainderman has
entered into a joinder agreement with
the related Mortgagor with respect to
their respective interests in the
Mortgaged Property, so that both
interests are encumbered by the related
Mortgage.
<PAGE>
SCHEDULE 21
(ESCROWS)
LOAN NO. EXCEPTION
52049 Tax and Insurance Escrow not funded at
closing. Loan is fully recourse until
funded.
<PAGE>
SCHEDULE 27
(NO EQUITY PARTICIPATIONS, ETC.)
LOAN NO. EXCEPTION
52134 Banc of America Historic Ventures, LLC
owns 99.9% of the limited partnership
interest in the Borrower.
<PAGE>
SCHEDULE 29
(LICENSES, ETC.)
LOAN NO. EXCEPTION
52134 Not all certificates of occupancy had
been issued.
51652 Borrower was given until June 30, 2000
to deliver such items.
<PAGE>
104120.1
SCHEDULE 35
(SUB-SERVICERS)
LOAN NO. EXCEPTION
All HVB Mortgage Loans All of the HVB Mortgage Loans are
Sub-Serviced by Midland Loan Services,
Inc. ("Midland") pursuant to a
Confirmation dated as of September 1,
2000 by and between the Master Servicer
and Midland (the "Midland
Confirmation"). Under the Midland
Confirmation, Midland continues to
receive its primary servicing
compensation while the HVB Mortgage
Loans are Specially Serviced Mortgage
Loans or REO Loans. Midland will retain
the HVB Mortgage Loans on its computer
systems while such HVB Mortgage Loans
are Specially Serviced.
<PAGE>
SCHEDULE 44
(RELEASES)
LOAN NO. EXCEPTION
52186 Upon subdivision, a portion of the
collateral is to be released (no value
attributed to it in connection with the
appraisal for calculating loan-to-value
ratio).
<PAGE>
SCHEDULE 48
(GROUND LEASES AND GROUND SUB-LEASES)
LOAN NO. EXCEPTION
51586 There are no provisions in the Ground
Lease with respect to subletting as to
(I).
51961 There are no provisions in the Ground
Sub-Lease(s) as to (E) and (G).
51962 There are no provisions in the Ground
Sub-Lease(s) as to (E) and (G).
51651 There are no provisions in the Ground
Lease as to (G).
51836 There are no provisions in the Ground
Lease with respect to assignability as
to (E); as to (J), ground rent may be
increased every 5 years by no more than
the greater of (a) the Consumer Price
Index, or (b) 110% of the then existing
rent.
52134 These Ground Leases have terms which
extend at least 10 years, but less than
20 years, beyond the stated maturity
date of the related Mortgage Loans.
<PAGE>
SCHEDULE 53
(DEFEASANCE)
LOAN NO.* EXCEPTION
510238
HVB Right to defease in less than two years
(February 1, 2002).
540310
HVB Right to defease in less than two years
(February 1, 2002).
* All of these Mortgage Loans are subject to a special repurchase
obligation under Section 2.03(e) of the Pooling and Servicing
Agreement.
<PAGE>
SCHEDULE 54
(APPLICATION OF CONDEMNATION AWARDS AND INSURANCE PROCEEDS)
LOAN NO. EXCEPTION
51650 Proceeds with respect to the pending
condemnation referenced in Schedule 9
will go to a third party.
52314 Kroger SNDA provides that insurance
proceeds are to be applied in accordance
with the Kroger lease.
<PAGE>
SCHEDULE 63
(ARD LOANS)
LOAN NO. EXCEPTION
178365 As to (i), Mortgage Rate is the
HVB initial term interest rate plus five
percentage points.
521564 As to (i), Mortgage Rate is the
HVB initial term interest rate plus four
percentage points.
